April 4, 2018
We would first like to thank all those people in Michigan and elsewhere who took the time to
comment in opposition to the Nestlé request to pump 400 gpm (gallons per minute) from the
White Pines Springs well in Evart to extract 210 million gallons of water from the commons for
$200 a year at a huge profit. The outrage expressed by the vast majority of commenters shone
a fierce light on the MDEQ at a time when the Department was facing criminal charges for
poisoning the people of Flint, and the State was busy selling off public assets in Detroit and Flint
and shutting the water off for thousands. These events are not unrelated. Nestlé has profited
from the crises in Detroit and Flint just as it expects to increase profit from the waters of the
Muskegon River Watershed. Once the dots were connected, the DEQ had to do more than
rubber stamp the permit.
The Department of Environmental Quality claims that their review of the data related to the
Nestlé permit request has been the most extensive in its history and therefore they are justified
in granting the permit without regard to the comments of thousands of Michigan citizens who
opposed it. They claim that they are only required to follow the law.
We say that there would not have been this extensive a review process had there not been
such a massive outpouring of opposition by the people who did not want to give their water to
Nestlé for their profit. There would have been no public hearing with 600 participants. There
would not have been three extensions on the comment period. There would not have been a
need to request further data from Nestlé three times. The DEQ would not have had to ask
MCWC to submit some of our data. They could have quietly ignored the public as they did when
Nestlé asked for that first addition of 100 gpm. No one knew about that one and they got away
with it without any review.
But the word got out when they dared to ask for 400 gpm, the amount the Court of law had
ruled was not environmentally sustainable to a stream in the Muskegon River Watershed in
Mecosta County just 20 miles away back in 2009. That legal precedent still stands. Garret
Ellison of M-Live blew the whistle on the permit request and the people of Michigan were
joined by people all over the world as we said “NO” to such an outrageous water grab.
The publicity was immediate and the DEQ had to step back and start to do its job. It could easily
have denied the permit using the laws it refers to, had it not already planned to grant it when it
allowed the extra 100 gpm. But Nestlé had already built its expansion at the Stanwood plant,
assuming it would get what it wanted. DEQ could easily have used the requirements under
Section 17 of the Safe Drinking Water Act to confirm existing damage. Instead it chose to ignore
the expert testimony that was submitted by FLOW, MCWC and others, and it chose to disqualify
the massive comment of the public.
The public is not so easily turned away however. The experience of the people of Flint with the
performance of the DEQ had all of us on the alert. The people of this state can clearly see that
something is wrong at the state level with our policies and the enforcements of our regulations.
Something is wrong with the naked control of a corporation like Nestlé over our government.
The issue is bigger than one well in Evart. The DEQ keeps reminding us that they are only
following the law. Had this been true historically, Flint might not have happened. We say again,
there is already a legal precedent to deny this permit.
The DEQ has a long road to prove it is capable of providing environmental quality and that it
serves the people of Michigan. We can cheer the fact that this permit request and our response
allowed the DEQ to begin showing that it is capable of the work it is charged with performing
for the people. Given a different set of directions from powers that be in Lansing at this time,
and given more human resources to do the work, the DEQ might someday be allowed to do its
job. They have made a start with the extensive monitoring requirements they seem to be
imposing on Nestlé. However, there are miles to go before there is a satisfactory outcome and
miles to go before there is justice for the people of Michigan.
As we review the permit details, we can say we are impressed that the DEQ is demanding a kind
of detailed monitoring plan from Nestlé which is long overdue. It appears that there is some
real-life data collection expected, real measuring instruments required, and an awareness of
the need to time crucial measurements to coincide with the seasons of greatest impact, the
months of June through September. Until now Nestlé has been allowed to do its own
monitoring using questionable methods and an excess of computer modeling.
However, there is an underlying flaw in these requirements. At every step, should the data
suggest a negative impact, Nestlé is required to reduce pumping to the level of 250 gpm, rather
than the 150 gpm granted in the original permit. Since there is ample evidence which has
already been submitted to the DEQ that there is a negative impact from the 150 gpm level, we
are puzzled that the DEQ would not at least require that Nestlé revert to that level.
The permit increase from 150 to 250 granted to Nestlé in January of 2016 is highly
controversial. Although Director Grether took the time to send us a letter assuring us it was all
perfectly legal to make that increase without public notice or comment, we fail to agree. When
we originally protested that behind-the-scenes increase we were told that extra 100 would be
folded into the new permit to go to 400 gpm. In other words, the 250 was really only legitimate
if the 400 was approved. In the meantime, Nestlé would be allowed the special privilege of
pumping at 250 anyway. Why wouldn’t Nestlé be required to return to the original baseline
approval rate of 150 if damage was shown to the streams, wetlands or aquifers? Why not
require they shut down altogether?
We notice that there is an attempt made to monitor aquatic life and habitat. We remember
that the DEQ announced plans to conduct an aquatic survey this coming summer on Twin and
Chippewa Creeks. It is a puzzle therefore why the DEQ would grant the permit prior to doing
the study. Are they worried that the study is likely to show that there already is serious damage
to aquatic life and habitat? If so, it would mean Nestlé couldn’t even begin to increase pumping
and in fact would have to stop pumping altogether until habitat is restored. This is something
we would welcome – not the damage, but the opportunity for restoration of the habitat. Our
members who live along these creeks are well aware of the changes which have accompanied
Nestlé’s pumping. Again, why the rush to grant the permit before the study?
It is time for study and data collection to be generated by independent experts or government
agencies like the US Geological Survey. Sixteen years of Nestlé “data” is enough. Apparently the
DEQ considers that data sufficient however. We do not. We all know how mistaken it would be
to allow the fox to guard the henhouse. The DEQ should at least have generated its own study
prior to granting a permit based on Nestlé’s questionable data.
There is another problem with the requirements for the monitoring plan. It seems that the
baseline data which is supposed to initiate the process is to be taken while Nestlé is pumping at
250 gpm, not the 150 of the original permit withdrawals. Is this because there is in fact no
credible baseline data from the initial permit? Was Nestlé allowed to begin pumping without an
independent assessment and baseline determination? Most likely this is so. At a minimum, if
the new monitoring system should find that pumping should be reduced to restore sustainable
levels, it would seem that the DEQ should pretend that there was an acceptable baseline for
the original permit and Nestlé should stop pumping until that original condition is restored. To
return to the already damaging levels achieved at 250 gpm makes no sense.
As we travel through the permit, past the sections with conditions for streamflow and aquatic
life, we come to the section on the Hydrological Baseline and Groundwater. The data required
here establishes a baseline which somehow ends up informing another modified model. We
ask, does this mean there is a revision in the Water Withdrawal Assessment Tool used to
evaluate the viability of the increase? Nestlé flunked that assessment with a score of “D” and
called for a site-specific review. This is a review that takes place in an office on a computer. The
DEQ admits that it did not visit the site to give Nestlé a pass based on this review. Are they now
trying for another “model” to justify the increased withdrawal. Certainly, this requires
clarification.
A similar difficulty comes to play with the section on wetlands. One would hope that the kind of
monitoring required in this permit had been required all along since Nestlé started pumping. If
it had, then there would be a real baseline to measure impact caused by Nestlé. It does not seem
that such data exists, as Nestlé has been the only monitor for 16 years. The requirements
of this permit do not seem to take into account the changes in wetlands that have already
occurred due to Nestlé, because the data was probably never collected. MCWC filed an
extensive and expensive FOIA request a year ago and received very little data. Therefore, the
baseline starts in the middle of impact, not at the beginning. Perhaps there is data from the
DNR or Fish and Wildlife that could help establish a real baseline. If not, it would seem the DEQ
should require that pumping stop altogether when monitors detect problems until a healthy
ecosystem is restored as determined by the DNR.
Last but not least there is the issue of the booster pump which Nestlé has to have before it can
increase pumping any further, and this is still in the hands of Osceola Township. The State
should not grant this permit when issues with the township are unresolved, yet it did so
anyway. The township used its own zoning laws to deny Nestlé the permit for the booster
station. Nestlé sued. The circuit court ruled in Nestlé’s favor with a fairly flawed opinion and the
township voted to appeal the ruling. It awaits a decision from the court of appeals as to
whether they will hear the case or return it to the lower court for reconsideration. This issue is
not even mentioned in the press release by the DEQ or in the permit. Yet it is a critical piece in
terms of the legal standing of the permit.
Will the people in the township most affected by this withdrawal get a legitimate day in court
and have a say in the process or not? We will continue to support their right to determine their
own course when it comes to protecting their home territory from the resource grab of a
multinational corporation whose only interest is profit.
We would expect that the DEQ would defend the people and environment of Osceola Township
also. It is their responsibility to serve the people first. If they create an independent monitoring
process that Nestlé must follow, and stop letting Nestlé run the show, then there is a chance
that this permit will never have to be implemented. We do not think there is any way that the
aquifer and the watershed can withstand the level of pumping that Nestlé is doing now for any
length of time. Certainly, there is little chance that 400 gpm will pass the test of real
monitoring. It didn’t in Mecosta and it won’t here.
We will continue contributing to the growing data base, and we will continue to support the
concept of keeping water in the commons, affordable and accessible for all who really need it.
Water is for Life, not for profit. MDEQ still has a chance to embrace this fact by not allowing the
implementation of this permit, based on the requirements of law and science.
Peggy Case,
President
and the Board of Michigan Citizens for Water Conservation
P.O. Box 1, Mecosta, MI 49332
MCWC@saveMIwater.org
Learn More about the Nestle water taking in Michigan here.
Also published on Medium.