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Media Release: FLOW Urges State Rejection of Nestlé Corporation’s Bid to Increase Water Extraction

FOR IMMEDIATE RELEASE                                                                              April 21, 2017

Contact: Liz Kirkwood, Executive Director                                                Email: Liz@FLOWforWater.org
FLOW (For Love of Water)                                                     Office: (231) 944-1568; Cell: (570) 872-4956

Contact: James Olson, Legal Advisor                                                                         Office: (231) 944-1568
FLOW (For Love of Water)                                                                                               Cell: (231) 499-8831

 

TRAVERSE CITY, MI – Nestlé Corporation’s bid to massively accelerate its drawdown of groundwater in Osceola County for sale as bottled water falls far short of the bar set by Michigan water law, and must be denied, FLOW said today.

In official independent scientific and legal comments as the state today closes its public comment period, FLOW said the permit application submitted by the world’s largest bottled water company lacks key information legally required by the Michigan Department of Environmental Quality to approve the request. Impartial scientific analysis of a complete application likely would show significant harm to natural resources, according to a review of Nestlé’s submission by scientists hired by FLOW.

“The more deeply you look at this application, the more superficial it proves to be,” said James Olson, founder of FLOW, a Traverse City-based water law and policy center dedicated to upholding the public’s rights to use and benefit from the Great Lakes and its tributaries. “Nestlé has self-servingly offered more baseless assumptions than substance in its application. They’ve put clay material to minimize effects without finding out if it’s really there. They’ve put 14 inches into their groundwater model, when it’s probably closer to 9 inches.”

Nestlé Ice Mountain is seeking a state permit to increase its spring water withdrawal from 150 to 400 gallons-per-minute (gpm), or as much as 576,000 gallons-per-day, from a well in the headwaters of Chippewa and Twin creeks in Osceola County, threatening public resources in the Muskegon River watershed.

“While Flint residents continue to be deprived of safe public drinking water and struggle to pay $200 a month for their home and health, the state is contemplating the giveaway to Nestlé of 200 million gallons of groundwater a year in exchange for a $200 state filing fee,” said Olson. “State regulators are required under public trust law to protect the public’s water resources for sustainable use by the public, not give it away to a private corporation for resale back to the public to which it belongs.”

FLOW legal and scientific team found that Nestlé’s application:

  • Fails to fully evaluate existing conditions. Data collected between 2001 and the onset of pumping in 2009 were not evaluated, nor were the seven years of data gathered since pumping at 150 gpm began. The data provided are insufficient for the public or the DEQ to fully assess the impacts of either past pumping or to provide an adequate baseline for identification of future harm to natural resources.
  • Lacks adequate information about the predicted effects of their requested pumping. The validity of the groundwater model predictions of the pre-pumping conditions of the system is not adequately established, nor are the predictions of effects of existing pumping within the system adequately established.
  • Neglects to consider, or provide a reasonable basis to determine, the individual and cumulative harm from pumping. The application does not address the cumulative effects of pumping at the proposed 400 gpm rate, but rather solely discusses the effects of the increase in pumping from 150 to 400 gpm.

Because of these gaps, the application skirts potentially significant environmental harm, with Nestlé failing to report:

  • Cumulative reductions of stream flows, which would exceed 15 percent in several locations, according to FLOW’s analysis.
  • Significantly reduced, seasonal wetland flooding that likely would occur and that is essential to the proper function of the natural system.
  • Increased harm to natural resources during years of low precipitation.

“If Michigan’s water withdrawal law has any meaning, the DEQ must deny the application,” Olson said.

The DEQ will close the public comment period at 5 p.m. on April 21. Written comments before the deadline can be emailed to deq-eh@michigan.gov or mailed to: MDEQ, Drinking Water and Municipal Assistance Division, Environmental Health Section, P.O. Box 30421, Lansing, Michigan, 48909-7741.

Nestlé’s application, supporting data and documents are posted on the DEQ website: http://www.michigan.gov/deq/0,4561,7-135-3313-399187–,00.html

To learn more about FLOW’s efforts to challenge the Nestlé permit and protect the Great Lakes and Michigan’s groundwater, visit our website at www.FLOWforWater.org.

To read our Letter and Expert Report to the DEQ on Nestlé’s application, please click here.

 

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PR: Congressman Dan Kildee Introduces Legislation to Protect the Great Lakes, Michigan’s Sport Fishing Industry

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters.

FOR IMMEDIATE RELEASE

Thursday, February 9, 2017

Contact: Mitchell Rivard, 989-450-2534, Mitchell.Rivard@mail.house.gov

 

Congressman Dan Kildee Introduces Legislation to Protect the Great Lakes, Michigan’s Sport Fishing Industry

Kildee Seeks to Address For-Profit Fish Farming that Poses New Threats to Michigan’s Waterways, including the Au Sable River

 

FENTON – Congressman Dan Kildee (MI-05), flanked by sports fishermen and conservationists at Red Fox Outfitters in Fenton, today announced that he has introduced new legislation in Congress to ban harmful aquaculture practices in both the Great Lakes and federally designated “Wild and Scenic Rivers,” which includes the Au Sable River. The new bills are part of Congressman Kildee’s continued efforts to protect the Great Lakes and Michigan’s rivers from pollution, disease and invasive species.

Aquaculture is the commercial raising of fish in ponds, rivers or lakes. If not done correctly, it has been shown to increase pollution, destroy sensitive fish habitats, spread disease and introduce non-native species. Sadly, other states have seen polluted waterways that have crippled local economies as a result of bad aquaculture practices. A commercial fish farm facility in Pennsylvania on Big Spring Creek – once a famous trout stream – collapsed the region’s fishing industry in the 1970s.

“Like many Michiganders, I have fond memories spending time up north on the lakes or fishing in the river with my family. For everyone in our state, our water is precious, and that’s why we have to always protect it from harm. Whether it is invasive species like Asian Carp, Canada’s plan to store nuclear waste on the shore of the Great Lakes or commercial fish farming, I will always fight to protect Michigan’s freshwater and the vital jobs that depend on it,” said Congressman Kildee.

Currently, a commercial aquaculture facility near Grayling has a state-issued permit, through the Michigan Department of Environmental Quality, to expand its fish farming operation by 15 times its current size. The expansion will pollute the “Holy Waters” of the Au Sable River, one of Michigan’s 16 rivers designated a “Wild and Scenic River” by the federal government based on its unique ecosystems and pristine scenery.

Congressman Kildee’s two bills include:

  • The Ban Aquaculture in the Great Lakes Act, which would ban aquaculture facilities in the Great Lakes, ending the current patchwork of state laws that attempt to regulate such commercial fishing.
  • The Preserving Fishing on Wild and Scenic Rivers Act, which would ban aquaculture facilities on Wild and Scenic Rivers and its tributaries, such as the Au Sable River, unless such facilities are shown not to discharge pollutants into the river.

Banning aquaculture has support from a vast majority of Michiganders, as well as lawmakers and conservation groups. According to a recent poll, 68 percent of Michiganders oppose aquaculture in the Great Lakes. Additionally, this issue is not a partisan one; Republicans in the Michigan Legislature have previously introduced legislation to ban aquaculture in the Great Lakes and in Michigan waterways.

Congressman Kildee’s legislation also has support from the Anglers of the Au Sable, Michigan Trout Unlimited, Michigan United Conservation Clubs, Michigan Salmon and Steelhead Association and For the Love of Water (FLOW).

“Anglers of the Au Sable applauds Congressman Kildee for addressing an overlooked Great Lakes water issue, the introduction of pollutants by fish farms into the Lakes and connecting waterways,” said Tom Baird, president of the organization that focuses on improving fishing on the Au Sable River. “It is vital that fish farms be operated in a way that protects the cleanliness of our rivers and lakes, which are in a delicate balance easily tipped by addition of wastes from aquaculture done improperly. Flow through systems that use rivers as virtually open sewers are of particular concern to those of us who fish for trout, which need clean, cold water to thrive. This legislation would ensure only properly regulated fish farms which don’t pollute are allowed on designated rivers.”

“The Michigan Steelhead and Salmon Fishermen’s Association is one of the largest sport fishing organizations in the Great Lakes Basin. Our mission is to protect, promote and enhance sport fishing in the Great Lakes and connecting water ways. We are proud to support legislation to prohibit aquaculture in the Great Lakes and to prohibit aquaculture operations that contribute to pollution of wild and scenic rivers,” said Dennis Eade, Executive Director of the Michigan Steelhead & Salmon Fishermen’s Association.

“We appreciate Congressman Kildee’s leadership on this very important sportsmen’s issue.  Aquaculture facilities across the globe that are connected to public water bodies have proven to be disastrous for water quality and fish health. Our $4 billion fishery in Michigan drives local economies, creates jobs, and connects millions of Michigan citizens to our long and storied heritage as the premier fishing destination in North America,” said Michigan United Conservation Club.

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Opinion on Aquaculture by Bill Schuette, Attorney General

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters.
Since our A.G. has emphasized the importance of public trust in the Great Lakes and navigable lakes and streams, including Great Lakes, we’ve analyzed the doctrine, applied it to fish farming in Great Lakes, and the answer is: it cannot be authorized under the public trust doctrine, not even by legislative amendment to expand the definition of aquaculture as implied by the A.G.’s opinion.

 

Read the recent Attorney General opinion on Aquaculture in the Great Lakes: Click here! 

Read More about Aquaculture in FLOW’s recent Aquaculture issue brief! 

(Also available in Flipbook form)

 

Not So Fast Nestlé: A Citizen’s Guide to Oppose Nestlé Water Grab

Bottled water

Nestlé has revived plans to more than double its pumping in Osceola County.

What’s At Stake

There’s a big fight brewing over water worldwide. From drought-stricken California, to Canada, to Germany and beyond, the Nestlé corporation is one of the key players in a worldwide effort to privatize our finite water resources and then sell it back to us in plastic bottles in and outside the Great Lakes Basin.

In 2009, Michigan Citizens for Water Conservation (MCWC) ended a 10-year battle with Nestlé/Ice Mountain and won by reducing the amount of water being pumped so that nearby wetlands and streams would not be harmed in Mecosta County. The facts in the MCWC litigation demonstrate how Nestlé underestimated the harm aquifer over-pumping causes to adjacent surface waters, wetlands, fish, and aquatic life. FLOW’s founder and president, Jim Olson, represented MCWC as the lead litigator in this critical battle to safeguard our waters from privatization.

Since 2001, Swiss-owned Nestlé has removed more than 4 billion gallons of groundwater from its three Michigan wells in the Muskegon River watershed for a paltry $200 annual fee per well, according to MDEQ statistics.

Nestlé has now revived plans to more than double its pumping from 150 gallons per minute (gpm) to 400 gpm or 576,000 gallons per day (gpd) in Osceola County just north of Evart, Michigan.  Production Well PWB101, White Pine Springs Site, as it is known, is located between two cold water Muskegon River tributary creeks, Twin and Chippewa Creeks. Last winter, when Nestlé applied for this pumping increase using the state’s computer water withdrawal assessment tool, it failed. Nestle then requested and obtained a site specific review by DEQ staff that showed that only minimal declines in water levels in the summer of 2016.

If approved without full disclosure and public review, Nestlé would only create 20 new jobs, but would legally be entitled to bottle and sell nearly 500 million gallons per year of Michigan water at the Ice Mountain bottling facility in Stanwood, Michigan.

What You Can Do To Help

Please write an email letter to the DEQ at deq-eh@michigan.gov prior to April 21, 2017 at 5:00 p.m., and demand the following:

  • Urge the DEQ to oppose Nestlé/Ice Mountain’s current permit application to increase its allowed pumping from 150 to 400 gallons per minute (gpm) from White Pine Springs Well (PW-101), Osceola County, Michigan.
  • Demand the DEQ to set aside its January 2016 site-specific review for lack of public notice and comment;
  • Demand the DEQ complete an entirely new site specific review;
  • Demand the DEQ conduct site specific review on all permits issued to date to avoid incremental steps and registrations by Nestlé (this is in addition to the Safe Drinking Water Act (SDWA);
  • Demand full disclosure and transparency to the public for informed decision-making.
  • Demand sufficient time for independent analysis and public involvement in Nestlé’s recent request.
  • Demand the State to apply the legal standards and requirements set forth in the Water Withdrawal Assessment Tool, riparian reasonable use law, public trust law, Great Lakes Compact, and the federal Safe Drinking Water Act.
  • Request multiple public hearings in the following locations: Evart, Detroit, Flint, Muskegon, and Traverse City.

For your reference, we have included a template letter for you to use and craft your own letter.

If you live outside Michigan, we all know that what one state does in the Great Lakes Basin, affects all. As residents in the region, we cannot afford to allow significant increases in water withdrawals without sufficient time for independent analysis and public involvement.

If you live in one of the eight Great Lakes states or the provinces of Quebec and Montreal, we urge you to write your governor/premier. Ask that diversions of Great Lakes water in containers less than 5.7 gallons be added to the 2008 Great Lakes Compact.

Please think twice about drinking bottled water. Instead, insist all elected officials make clean, safe drinking water a priority. We can live without a lot of things but water is not one of them.

 

Template Letter

Governor Rick Snyder
P.O. Box 30013
Lansing, Michigan 48909

Attorney General Bill Schuette
G. Mennen Williams Building, 7th Floor
525 West Ottawa Street
P.O. Box 30212
Lansing, Michigan 48909

Director Heidi Grether
Michigan Department of Environmental Quality (MDEQ)
Office of Drinking Water and Municipal Assistance
P.O. Box 30241
Lansing, MI  48909-7741

Division Director Bryce Feighner
Michigan Department of Environmental Quality (MDEQ)
Office of Drinking Water and Municipal Assistance
P.O. Box 30241
Lansing, MI  48909-7741

Supervisor Matt Gamble
Michigan Department of Environmental Quality (MDEQ)
Source Water Unit
P.O. Box 30241
Lansing, MI  48909-7741

VIA Email Submission

deq-eh@michigan.gov
miag@michigan.gov  
migov@exec.state.mi.us

 

Dear Governor, Attorney General, DEQ Director Grether, Division Director Feighner, and Supervisor Gamble:

I urge the State of Michigan and the Michigan Department of Environmental Quality (MDEQ) to reject Nestlé/Ice Mountain’s current permit application to more than double its allowed groundwater pumping from 150 to 400 gallons per minute (gpm) from White Pine Springs Well (PW-101) in Osceola County, Michigan.    

By law, Nestlé’s proposed groundwater withdrawal must result in no “individual or cumulative adverse resource impacts,” and must be “in compliance with all applicable local, state, and federal laws as well as all legally binding regional interstate and international agreements.” Based on the following legal and technical deficiencies outlined below, the Nestlé application must be denied:

  1. Nestlé has not submitted sufficient critical information on which the DEQ can make a “reasonable determination” in accordance with the standards set forth in the applicable water laws of Michigan.
  2. The application is technically deficient because:

(a) The information and evaluation of groundwater, wetlands, springs, and streams is based on an unreliable, manipulated computer model that looks narrowly at the proposed 150 gpm pumping level increase, and not the cumulative 400 gallons-per-minute;

(b) The application fails to rely on observed existing hydrology, soils, environment, and other conditions, in violation of Michigan’s water withdrawal law, which mandates evaluation of existing conditions;

(c) Nestlé’s consultants failed to collect or use real conditions to compare to its unfounded, computer modeling predictions of no effects; and

(d) The model assumes more water in the natural system than exists, assumes more rain and snowfall gets into groundwater than actually occurs, used only selective monitoring for 2001-2002, and left out monitoring data from 2003 to present because it would show more negative impact to streams, wetlands, and wildlife.

  1. Nestlé has not filed its existing pumping records, and its pumping to date has violated Michigan law because it has pumped and transported water without authorizations required by Section 17 of the Safe Drinking Water Act and the applicable Section 32723 of the state’s water law.
  1. Four hundred (400) gpm will diminish the twin creeks and wetlands, which in turn will impair and harm the water, aquatic resources, and public trust in those natural resources, contrary to Michigan law.

Despite a supplemental information request to Nestlé in February, the MDEQ still do not have sufficient information from Nestlé related to the groundwater modeling, streamflow data, fish, macroinvertebrates, and aquatic habitat data, as well as the company’s compliance with Michigan’s reasonable use doctrine and related water laws. Accordingly, the application as it stands now must be denied for failure to show that its proposed pumping will not harm the creeks, wetlands, streams, species, and ecosystem. In addition, Nestlé’s deficient record raises questions as to whether the company received proper authorization in 2015 to increase its pumping from 150 to 250 gpm.

Nestlé’s proposed 167 percent expansion increase request continues to put our public waters at risk. Remember that Michigan’s 12,000 year old glacial sand, gravel and clay and ancient groundwater is recharged by only 8 or 9 inches a year of precipitation – about 30 percent of an average of 32 inches a year in the form of snowfall and rain during the rainy season. The rest of the year is dry with frequent drought in the summer months such that these headwater streams and creeks simply cannot survive; pumping at Nestlé’s proposed rate is simply not sustainable, and the MDEQ should deny this request outright.

Water is public. Water is also our most precious finite resource that is the lifeblood of our economy, our health, and our way of life here in the Great Lakes Basin. Privatizing our waters for profit and export outside our watersheds is a legally-defined harm. As public trustee of our waters, the State of Michigan is legally bound, on behalf of current citizens and future generations, to protect this resource from impairment, harm, or privatization for solely private purposes. This is the law.

The nonprofit, FLOW (For Love of Water), intends to submit additional substantive technical and legal comments to the MDEQ related to this permit application. Based on Nestlé’s legally and technical deficient application, I urge the State of Michigan to deny this permit and to impose a statewide moratorium on any new high volume wells near headwater creeks or for bottled water until these issues are addressed. 

Thank you for fulfilling your public trust obligations to safeguard our most precious resource – water.

Sincerely,

 

 

Further Reading

“DEQ sets table for strict review of Nestle water bid” (MLive, Feb. 7, 2017)

“Where will the water go? A snapshot of recent changes in Michigan water law” (Michigan Real Property Review, Winter 2006)

“How Michigan water becomes a product inside Nestle’s Ice Mountain plant” (MLive, Dec. 8, 2016)

“Why Nestle really wants more Michigan groundwater” (MLive, Dec. 6, 2016)

“Public wasn’t adequately notified of Nestle water request, says DEQ director” (MLive, Dec. 5, 2016)

“Flint hits chemical company with $2.6M in fines over industrial waste” (MLive, Dec. 5, 2016)

“DEQ overruled computer model that flunked Nestle groundwater bid” (MLive, Nov. 22, 2016)

“DEQ pushes Nestle groundwater bid public review into next year” (MLive, Nov. 22, 2016)

Standing Rock win echoes across the Great Lakes

“Sunday marked a hard-earned victory for the Standing Rock Sioux tribe with the announced construction halt of the Dakota Access oil pipeline.

The protest’s main message has resonated here in Michigan and around the globe because of its core truth: oil pipelines – new and old – threaten lands and waters that are vital, not just to tribal members but to all Americans.”

FLOW’s Executive Director, Liz Kirkwood, brings the Standing Rock victory home to Michigan in this opinion piece from the Record Eagle. The time has come to defend our water.

Michigan’s Growing Threat: Fish Farming in the Great Lakes & Tributaries

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters.

Great Lakes advocates say that commercial net-pen fish farming, pictured above, does not belong in Michigan’s public waters. FLOW’s latest issue brief, available here, summarizes the public trust legal framework in Michigan that prohibits Great Lakes fish farming, outlines the significant economic and environmental risks that aquaculture poses, and recommends actions the public can take.


Michigan sits at the center
of a debate over whether to open its Great Lakes waters to commercial aquaculture or fish farming. The practice involves packing thousands of fish into near-shore cages or mesh net-pens that rise above the surface, are anchored to the bottom, and accessed via pier or boat. The fish are fattened with food pellets and buoyed by antibiotics, and discharge tons of untreated waste rich in nitrogen and algae-producing phosphorous into public waters.

Great Lakes advocates, including environmental and anglers groups, tribes, scientists, legal experts, a trio of state agencies, and lawmakers in both major parties, say that net-pen aquaculture in the Great Lakes is not legally authorized and is too risky for the environment, native species, and the multibillion-dollar sport fishing economy.

This FLOW Issue Brief summarizes the public trust legal framework in Michigan that prohibits Great Lakes fish farming, outlines the significant economic and environmental risks that aquaculture poses, points to the promise of closed-loop aquaculture operations not connected to public waters, and recommends actions the public can take.


(Click to access PDF of the issue brief)

Water Poet Mike Delp Shares His Latest Work

 FullSizeRender (1)

“I say water is better than money,”

— Mike Delp, “Mad Angler Speaks Truth to Power,” from Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler. (Wayne State University Press, 2016).

Mike Delp, the water poet, has shared his poems at readings and on the electronic pages of our webpages in support of FLOW’s work “For Love of Water.” His poems are a testament to water, life, soul, his own personal search over for meaning through a lifetime of waking, fishing, and floating the currents of rivers.  It is an honor to acclaim the release of his new book of poems published this past Spring by Wayne State University’s Press Michigan Writers Series. The title of the work is itself enough to provoke anyone to pick up the book and start reading: Lying in the River’s Dark Bed: The Confluence of the Deadman and the Mad Angler

If you haven’t already met the Mad Angler or Deadman at one of Mike Delp’s readings, you are in for a ride, as if he’s talking to you from behind as you sit in front watching King Fisher or Blue Heron take flight or a fish rise and disappear in front of you while he guides the float boat down the river.  If you have heard him read or read one of these poems rising out of mudflats and riffles in the past several years, this collection is your chance to do so. Let these poems skew your compass and shake loose the sediments  in your heart and mind. Here are a few lines from just a few of the poems in this new collection.

 

“You pray for a second coming, the sky to open,
for people to be carried off, raptured.
I pray each morning for entire counties to vanish,
the boardrooms of Big Water and Big Oil to warp out of existence.”

–” Psalms of the Mad Angler”

 

“Deadman treats words like road kill,
runs them down, stops,
rolls backward and forward,
over and over.
After he flattens thousands of words,
he thinks he has invented a new language.
He writes a book,
says,
‘Here read this
it will kill you.'”

— “Deadman as Writer”

“I trust only the sweet smell of rotting cedar,
the scent of mudbanks festering with nymphs,
rivers rising in my blood like an illness,
a fever sent by the god of desire to make his presence known,
something jolting through the veins to replace
the done deal, the raise with the corner  office,
the soul trader you most likely have become.”

— “The Mad Angler’s Manifesto”

Take the plunge, float the rapids, swirl in the eddy, join the confluence where Deadman meets the Mad Angler in this collection of poems.

Waukesha’s Proposed Exemption to the Great Lakes Compact Diversion Ban

Ask any ship captain or sailor along the shores of the Great Lakes, and they will tell you how important it is to follow the rules of navigation, including honoring those lighthouse beacons and green and red channel buoys. In short, boat captains must exercise utmost caution at all times. The same is true for the eight governors of the Great Lakes States under the Great Lakes Compact, which has a narrow exemption to the supposedly iron-clad ban on diversions out of the Basin. The Compact’s provision at issue exempts communities located in Counties that straddle the basin divide. It should also be remembered that the waters of the Great Lakes Basin are held in trust under both the Compact and the common law; what this means is that  the governments as trustees have a high, solemn duty to protect the integrity of these waters, ecosystems, and public uses dependent on them.

The City of Waukesha and its water service area sits entirely outside of the Basin; its proposal to divert water is allowed only because of the Compact’s exemption to the diversion ban, and a set of strict principles that like navigational beacons or buoys are intended to keep the Compact from collapsing on a reef of potentially bad and rocky precedents. When the final decision is made on June 21 or later on Waukesha’s proposed average of 8.1 million gallons a day (mgd), the Council and Regional Body must first and foremost concentrate on the paramount responsibility toward the waters of the Great Lakes Basin, the strength of the Compact, and the interests of citizens as beneficiaries of this public trust.  Like ship captains, the Council and Regional Body must exercise utmost caution, and steer the Compact away from any reefs, even if it means further tightening the parameters of  a proposed exemption like Waukesha.

On June, 21, 2016, the Great Lakes Compact Council and Regional Body are faced with an important decision on whether Waukesha, Wisconsin – a city located entirely outside of the basin near Milwaukee—can legally divert 8.1 million gallons a day from Lake Michigan. Given the Compact’s diversion ban and limited exemption for straddling communities, this decision is not just about the needs of Waukesha, but the precedential effect it will set for future demands for Great Lakes water in light of climate change impacts, increased competition, and greater worldwide water scarcity. By navigating within the strict standards of the Compact, the Council and Reginal Body can reach the right decision. To do this, the following standards and further modifications of Waukesha’s proposal  must be kept in mind:

 

  1. Straddling Community or County

 To qualify for an exemption to the Compact’s diversion ban, a community’s water system has to straddle the Basin surface drainage boundary or sit in a county that straddles the basin.  If it does not, it cannot divert water from the Great Lakes.  A community in a straddling county can request an exemption but only if they demonstrate a clear public need, no alternative, no significant cumulative environmental impacts, and provide at its cost fully transparent monitoring, inspection, enforcement, and strong conservation measures.

 

  1. Public Need

On June 11, 2016, the Council proposed reducing Waukesha’s original proposal from 10.1 mgd to an average of 8.1 mgd, or about 19 percent less, because approximately 2 mgd of the water would have served the future growth needs to the year 2050 in communities outside Waukesha’s territory and existing public water system that currently draws groundwater from the Mississippi Basin. However, the future growth and build-out 2050 goal of Waukesha raises a basic question of whether Waukesha’s proposal serves current public needs or its goals several decades in the future. This problem is compounded by the fact that the 8.1 mgd is an average; it can go much higher during at any given time. Can the straddling community exemption turn on such a loose application of public need? The Council and Regional Body should (1) cap the diversion at the 8.1 mgd, averaged over a 30-day period, in order to avoid large swings in diversions and discharge of return treated waste water into the waters of the basin, and (2) impose a condition that requires reevaluation of the public need and other factors every five (5) years to ensure that Waukesha does not look to the Great Lakes as its only source of water before and after 2050. The exemption for straddling communities was not intended to “subsidize” the growth and development of communities and water use outside the Basin.

 

  1. Showing of No Alternatives

 Generally an alternative exists if it is feasible and reasonably prudent. The burden rests with the straddling community. In this present case, Waukesha currently meets its daily needs of 6 mgd from groundwater within the Mississippi Basin.  A court ordered the city to treat its groundwater or find another water source because of unacceptable levels of radium contamination.  In the last 15 years, groundwater tables in the region outside the basin have been steadily rising.  Given this dynamic situation and the fact that Waukesha can either treat its water or divert its water from Lake Michigan, Waukesha has alternatives that do not require 8.1 mgd or more at times from Lake Michigan. Just because one alternative is more expensive than another is not enough to reject an alternative; the cost must be prohibitive or logistics seriously difficult.  If the alternative standard is not strictly applied, others in the future will justify requests for water under the same circumstances.  Waukesha’s court-ordered water supply fix possibly provides a distinction; however, is it enough where the problem could be addressed by various alternatives that while perhaps not the preferred alternative, are feasible and not extremely difficult? The upcoming June 21 record must show that Waukesha’s alternatives to use or treat groundwater within the Mississippi Basin or to supplement water from Lake Michigan are both cost prohibitive and severely difficult. Any weaker standards will signal others outside the Great Lakes Basin that the door is ajar and available for their water needs and demands.

 

  1. Monitoring Conservation, Diversion, and Return Flows

 Waukesha’s recent modification does not sufficiently describe critical details on how Waukesha’s proposal, if properly approved, would be monitored, transparent, and enforced.  And these are essential to the Council and Regional Body’s review on June 21. For example, the parameters for monitoring inflows from Lake Michigan, water use, return wastewater discharge, flows and levels of the Root River, and other key hydrological elements and effects are not specified.  It is also not clear who can and will enforce or who will pay for it. Waukesha’s proposal should not be approved without adding clear, transparent, and enforceable measures and conditions to assure that the standards and limits of the diversion are not violated. Without clear guidance, the diversion could become slippery slope that overtime could become a basis for other communities to argue a lack of overall concern in protecting the Compact’s ban on diversions.

 

  1. Waste Water Return Flow to Root River and Lake Michigan

 The Compact mandates a determination that there will be no significant impacts from an exemption for a straddling community diversion to the environment, including cumulative impacts. The record of the proposal to date emphasizes consideration of the impacts of the proposed diversion, but does little to support a finding that there will be no significant effects or impacts from the average of 8.1 mgd discharge of treated wastewater to the Root River that flows to Racine, Wisconsin and into Lake Michigan. Currently, wastewater from Waukesha’s sewage waste water is returned to water courses within the Mississippi Basin, with no effects on the waters of the Great Lakes.  The return flow requirement, which is a necessary condition to any diversion of Great Lakes water to a straddling community, could significantly increase flows and levels of the Root River and downstream communities like Racine.

Racine and the river and ecosystem are part of the waters of the Basin protected by the Compact as the Great Lakes themselves. A straddling community proposal like Waukesha’s must determine that there will be no significant direct and cumulative environmental impacts from return flows into waters of the Basin. The Compact covers all “waters of the Basin.” A smaller river or community, or land and adjacent ecosystems cannot be ignored or sacrificed any more than the Great Lakes. Waukesha’s proposal therefore should not be approved until it has been shown that the return treated waste water will not adversely and significantly affect and impact the river, its ecosystem, and downstream communities like Racine.  The Council and Regional Body should set a high bar for what must be shown to satisfy the impact standard; as described above, this should also include stringent baseline study, monitoring, accountability, and enforcement.

The Great Lakes Compact Council and Regional Body must exercise utmost caution in interpreting and applying the standards for any community to obtain approval of a diversion within the narrow straddling community exemption to the diversion ban.  Based on the Compact and common law principles, the Great Lakes and Basin waters are held by the states in trust.  As trustees, the states have a solemn duty to protect these waters and their private and public use and enjoyment.  This means that each standard in the Compact must be cautiously applied so that there is no room for misinterpretation or unintended bad precedent in the future that would weaken the Compact.  Just like ship captains, when it comes to the Great Lakes, there is no room for error.

Public Comments to MI DNR, DEQ, and DARD on Aquaculture in the Great Lakes and Tributaries of Michigan

Aquaculture –often in the form of networks of enclosed pens that exclusively occupy a large area of surface water and underlying bottomlands—raises substantial legal, environmental, aquatic resource, and water use impact issues. Specifically, the use of public waters and bottomlands for the occupancy and operation of concentrated fish production raises a number of grave concerns, including: (1) exclusion of public access and other uses, (2) likely impacts from wastes and nutrient loading, (3) escaped fish pumped with antibiotics, and (4) interference with rights of boating, fishing, swimming, and other forms of paramount public uses that are protected by the public trust doctrine.

By definition concentrated aquaculture or fish farms that occupy surface and deeper water areas and occupy or are anchored or supported by bottomlands of the Great Lakes are subject to the common law public trust doctrine. Accordingly, any decision involving enclosed, pen concentrated fish-farming operations must be framed through the standards set forth under the public trust doctrine. This comment outlines the public trust framework critical to any state decision involving aquaculture in the Great Lakes and connected navigable waterways. Read the full comments here.

Colorado Rules That State Laws Trump Local Bans on Fracking

On Monday May 2, 2016, the Colorado Supreme Court ruled that state laws regulating the oil and gas industry trump local bans and moratoriums on fracking.  Colorado has become a leader in oil and gas production with more than 50,000 actives wells and more than 45,000 inactive wells.  The high court overturned Longmont’s 2012 ban on fracking and fracking waste disposal, as well as Fort Collins’ five –year moratorium on fracking on the grounds that these local measures “operationally conflict[]” and “materially impedes” state power.

By contrast, the law in Michigan preempts regulation by counties and townships on oil and gas operations only as it relates to the zoning of the location and related “location, drilling, completion, operation, or abandonment” of oil and gas wells.  In other words, townships and counties do have some authority and ability to regulate related facilities, processes, and activities, such as natural gas pipelines, flow lines, gathering lines, treatment or production facilities, or compressors, pursuant to the Addison Township v. Gout case. Click here for more information about local authority to regulate ancillary activities of oil and gas in Michigan.

 

Read the full news stories from the Denver Post and Forbes.