Once Again Nestle/Blue Triton Dodges Justice

After EGLE granted an increase of 150 gallons per minute from the original PW 101 well up to a total of 400 gpm, state officials at least required Nestle to install a more stringent monitoring plan as a condition of exercising the right to pump at 400 gpm. However, the State would not let MCWC participate in the plan —only Nestle, the US Geological Survey, and EGLE. This meant Nestle’s consultants would control the plan, which meant the plan would not provide adequate warning of damage. The creeks were already damaged and there had been no warning about it so far from the State or Nestle.

When Nestle sold its North American bottled water wells and operations to hedge-fund investor backed Blue Triton, Blue Triton secretly worked out a deal with EGLE officials, without advance notice to MCWC or the public, allowing Blue Triton to withdraw the 400 gpm permit so it could get out from under any monitoring plan. EGLE then let Blue Triton “reduce” its pumping to 288 gpm (or 416,000 gallons a day) which is twice the threshold for a bottled water permit under the State’s water laws. EGLE confirmed this 288 gpm pumping includes Nestle’s original PW 101 permit for 150 gpm, an increase by 100 gpm approved without comment in 2015, plus the approved registration of another 33 gpm.

By interpreting Michigan’s water laws to apply only to the most recent increment of 33 gpm, Blue Triton was able to dodge an evaluation of the effects of the cumulative removal of 288 gpm on the trout streams and watershed, and it no longer had to implement a monitoring plan that would catch these effects at these higher rates of pumping.

Though the North American operations of Nestle were sold to two private equity firms almost a year ago, the same staff remains to carry out the same policies of Nestle. The same staff remains at EGLE also. The environment is not a concern. Only the bottom line matters as they develop strategies to increase profits prior to flipping the company to another investor in a few years.

Our efforts to argue the merits of our case that the 400 gpm permit should be denied, beginning with the filing of the Contested Case with the Administrative Law Judge at EGLE, have been met with a small army of lawyers and modeling experts who are adept at masking the actual effects of pumping and maneuvering around legal requirements. In one step after another we have had to argue that the court had jurisdiction, that we had standing as representatives of riparian owners impacted, that EGLE has a constitutional responsibility to protect the environment and the waters of the commons, that EGLE and the Attorney General’s office should have used the available laws as required to defend the water instead of throwing the weight of her office behind defending the illegal actions of EGLE in granting the permit in the first place. We have spent a large amount of the people’s money just trying to get a proper hearing for the water in a state that prides itself on its water resources.

The final round occurred as a result of a clever maneuver on the part of Blue Triton (formerly Nestle). We had filed a petition for a hearing with the Ingham County Circuit Court following the adverse ruling coming out of the court at EGLE on our contested case. That ruling had continued the argument that we were not even entitled to mount a contested case. Again, we were still wrapped up in procedural matters that denied us the opportunity to argue the merits of our opposition to the permit. We had hoped the Circuit Court would at least be able to hear our case on several related matters left open by Judge Pulter’s ruling.

But to evade the court’s review Blue Triton decided to pull a fast one and declared that they were not going to use the permit, asking instead that EGLE re-register the amount they would withdraw from their previous permit for 250 gpm so that they would take 288 gpm. They called this a reduction and expected to get away with looking like they were reducing pumping and being good citizens. We were no more fooled than a third grader would be. 288 is a higher number than 250, not lower and an increase in a water system that has already seen immense damage is unacceptable.

But EGLE went along with it immediately and withdrew the permit, granting the re-registration, and agreeing with Blue Triton that this meant legally they didn’t need a new permit or a monitoring plan, according to their interpretation of law and the case should be declared moot. They then filed a motion to have the case in Circuit Court declared moot on the basis that no permit now existed so no contested case either. We argued that there were several outstanding issues still open and therefore we should proceed and resolve them. The Judge ruled against us and in favor of Blue Triton’s trick. Case declared moot and we were out the door in 25 minutes.

We are currently exploring our options for moving forward. Of course, there has been no justice here for Twin or Chippewa Creeks, or the people of Michigan who are still held captive by a private corporation still running the show at EGLE. The headwaters are still bone dry, the mudflats growing, the trout seldom found in two inches of water where they once swam free.

EGLE has suggested that if there are problems or gaps with Michigan water laws, then these flaws should be corrected by the legislature. Perhaps that’s not a bad idea in terms of some of the loopholes left when the Great Lakes Compact, our groundwater and bottled water laws were amended in 2008. Article 4, section 52 of Michigan’s Constitution declares that the protection of water resources from harm is a paramount public interest over efforts to extract water for private sale from Michigan and the Great Lakes. Perhaps it’s time for our Governor, Attorney General, and EGLE to get behind this effort on behalf of citizens who have carried the load. If water is paramount and our government has a duty to protect it above all else, we ask ourselves why should citizens be forced to do the job of the state and legislature.

The question for the people is how to get those laws properly introduced, supported and enforced and the Constitution based on public trust mandates put forward once again as the guiding principle behind agency actions. We welcome any suggestions from the real stakeholders in this venture, the people of Michigan, the Tribes with Treaty rights, and those who commit their lives to defending water and universal access to it.

We contend that the Great Lakes and the surface and ground waters which make up the entire watershed can never be for sale and should never be controlled by private corporations for the profit of the few. We contend that State government must also remain under the control of the electorate rather than the whims of big money donors who not only try to buy water and turn it into a commodity, but buy politicians who serve them in weakening the laws meant to protect natural resources.

— Peggy Case (input from Jim Olson)