Michigan Democrats take aim at Nestlé. Farmers urge caution.

The new state bills are the latest turn in a longstanding dispute over whether Nestlé’s groundwater extraction for Ice Mountain bottled water is an acceptable use of the state’s public water supplies. (Bridge photo by Jim Malewitz)

A Swiss company’s water withdrawals in northern Michigan are again stoking long-simmering tensions, with the issue becoming part of a larger debate over who controls water diversion across the Great Lakes region.  

In a one-two punch, Nestlé Waters North America, Inc. is the target of two state bills designed to increase the state’s control over groundwater supplies shortly after the company lost a court appeal related to its plans to increase pumping rates.

It’s the latest turn in a longstanding dispute over whether Nestlé’s groundwater extraction for Ice Mountain bottled water is an acceptable use of the state’s public water supplies.

Michigan is known for intense water management debates, but the state’s public controversy about bottled water is uniquely fervent, Peter Annin, author of “The Great Lakes Water Wars,” recently told Bridge Magazine. 

State environmental officials received more than 81,000 public comments last year when Nestlé asked to increase pumping capacity in northern Michigan — with only 75 comments supporting the company’s proposal, Annin said. 

“Michigan,” he said, “stands alone in the Great Lakes region for just how controversial bottled water has become.”

Democrats in the Michigan House introduced two bills that could complicate Nestlé’s ability to pump and bottle for sale Michigan groundwater, if successful. One would establish that Michigan’s groundwater is a part of the public trust, which would make it easier for those who oppose the company’s withdrawals to sue. The second would ban water pumped in the state from being shipped outside of the Great Lakes watershed. 

The legislation likely faces an uphill climb in the Legislature, where Republicans control both chambers. Former Republican Gov. Rick Snyder’s administration approved Nestlé’s increased pumping permit last year and Republicans spearheaded legislation that made large quantity groundwater withdrawals easier. A Republican-led bill to put a per-gallon tax on bottled water production died without a committee hearing last session.

Spokespeople for Speaker of the House Lee Chatfield and Senate Majority Leader Mike Shirkey, both Republicans, told Bridge they haven’t had a chance to review the legislation.

The bills came two days after the company lost in the court of appeals. Nestlé’s legal fight began in 2018 when it sought to install new machinery in Osceola township to increase withdrawal as approved under Snyder. 

The township intervened, saying the land Nestlé hoped to build on was zoned for agricultural use only.

Nestlé sued, claiming its pump was exempt from local land use regulations because water is essential for human life — it thus was providing a public service, it argued, that could not be banned by local zoning laws. 

The lower sided with Nestlé, but the township found a friend in the Michigan Court of Appeals, which overturned the verdict last week, saying that while water was certainly essential, bottled water was not.

Nestlé is likely to appeal the decision, but environmentalists applauded it.

The ruling is “really significant,” and sets an important precedent, said Liz Kirkwood, executive director of For Love of Water (FLOW), a water conservation nonprofit organization based in Traverse City. 

Rep. Yousef Rabhi, D-Ann Arbor, told Bridge that the court ruling strengthens the argument behind a bill he is sponsoring that would make groundwater part of the public trust.

“We had been preparing our legislation for quite a while before the [court] ruling came out, but we think this strengthens our argument,” he told Bridge. 

Groundwater has historically been excluded from public trust doctrine because Michigan courts have limited public trust waters as those that are “navigable,” said Noah Hall, a law professor at Wayne State University who specializes in water regulations.

While Rabhi said the bill would expand opportunities for litigation against water withdrawals, Hall said he is less confident it would play out that smoothly.

“It’s hard to see it being a game-changer on any specific water use that’s in play right now,” he said. “No court has really answered head-on the fundamental question of whether bottling and selling water violates public trust” regardless of source.

Rep. Rachel Hood, D-Grand Rapids, is sponsoring the bill that would ban Michigan-sourced bottled water from leaving the Great Lakes basin by eliminating an exception that allows export in containers smaller than 5.7 gallons.

Water diversions out of the Great Lakes basin are governed by the Great Lake Compact, a eight-state agreement passed in 2008 that governs water withdrawals from the Great Lakes basin. It does not define bottled water as diversion, but rather as a “consumptive use” that is a permissible loss.

That carveout for small containers was born out of a compromise when the Great Lakes states were negotiating the compact. Compact members weren’t sure how to handle diversions for bottled water, beer or pop while keeping the package politically viable in all eight states.

Ontario suggested a compromise: The Canadian province had banned diversions before the compact, but Annin said its political leaders eventually “decided that you couldn't drain the Great Lakes with small bottles. And so Ontario decides to ban diversions and bottles larger than 20 liters, which is roughly 5.7 gallons.

“In the tense negotiating room for the compact that was like a magical compromise that everyone could put their arms around,” said Annin.

Rabhi said that, together, the two House Democratic bills work together to give Michigan residents more control over how the state’s groundwater is used.

Environmentalists applauded the legislation; Nestlé opposed it.

“The proposed package of bills in the Michigan House unjustly targets the bottled water industry. It is unfair to single out one industry, one type of water user, for such restrictions” a Nestlé Waters North America spokesperson wrote in an email to Bride Magazine. 

Rabhi doesn't deny the company is a major reason for the legislation. “What we are really targeting [with these bills] are companies like Nestlé that are stealing our groundwater,” he said.

But some skeptics say they worry the legislation, if approved, could carry some unintended consequences.

If groundwater becomes part of the public trust, then all groundwater is in the public trust — not just the water pumped by Nestlé. This would include the water pumped by other landowners in the state, such as residents on wells and Michigan farmers.

The public trust legislation “would not really impact much small farmers at all,” assured Rabhi. “We need to make sure our farmers have access to reasonable amounts of groundwater.”

But Matt Smego, manager of government relations at the Michigan Farm Bureau, said, “that’s a gross misstatement about what the impacts will be. This legislation appears to be a wolf in sheep’s clothing.”

It’s a “bad precedent” on a number of fronts, Smego argued. It may require farmers to seek public approval for “what kind of commodities can be grown in the state,” tramples property rights, and could take groundwater management decisions “away from the scientific elements we’ve relied on” into the more emotional court of public opinion.

The agriculture industry’s concerns may make the bills a tough sell for Rabhi’s Republican colleagues, who he admits are not completely on board yet.

“I think that it’s an ongoing conversation with folks on the other side of the aisle,” he said. 

Hall, of Wayne State, agreed that the bills could have unintended consequences. 

“If you want to protect groundwater as a natural resource from overuse, then you have to be willing to take on [agriculture] and other water users which are the major users of groundwater,” Hall said.

“If what you're trying to do is ban bottled water, then ban bottled water,” Hall suggested. “It seems a little silly to try to craft a protection for water that protects water from one use and not others, especially when [bottled water] is not a particularly large use.”

Bridge reporter Riley Beggin contributed to this article.

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Comments

Don
Tue, 12/17/2019 - 8:36am

Hell!! Let Nestles start pumping again to bring down the lake levels!!!!!!!!

Jeff
Tue, 12/17/2019 - 1:18pm

Don't let the Democrat bills pass. It will effect not only agriculture, but also the beverage industry, the auto industry, pharma and chemicals.

ron rusk
Tue, 12/17/2019 - 5:38pm

The water that Nestle bottles is a spit in the lake compared to Industrial agricultures' use of groundwater to grow commodities that are in constant oversupply. Their practices flush unimaginable quantities of pollution from chemical fertilizers and pesticides back into those same groundwaters. They too, violate the public trust of our groundwaters.

Jack Matthias
Tue, 12/17/2019 - 8:30pm

The diversion issue began due to a concern that Great Lakes water might be diverted to benefit other Americans outside of our basin, like farmers in the plains that are rapidly draining water tables for irrigation or heaven forbid - California citizens. Concern is that we could be outvoted in Congress to approve diversions.
Fresh water is a scarse resource in much of the world and a logical conclusion of our fears is that we will protect ours until it flows out of the Saint Lawrence River and loses much of it value by being contaiminated by salt. I think it is an absurd outcome and policy. Danger is we will over regulate and limit the use of our fresh water until we can't fully utilize it's benefits even within the basin. Would make a little more sense if we said it could be diverted after it leaves Lake Ontario, but not much need in that region.
The Nestle argument is absurd. Their impact on the lake level of Lakes Huron and Michigan is so small - it is almost impossible to measure - .00199 of an inch even if the additional 400 gallons per minute were approved. Think that is 2 /1000th of an inch. The Canadians are adding 2,165 gallons for every gallon that Nestle is taking out. Nestle 611,740,000 gallons out versus Canadians 1,324,512,000,000 gallons in yearly. 25 golf courses will use as much water as Nestle and we have over 700 golf courses. Some returns to ground water but most of it evaporates. Same with farmers who irrigate - guessing that amount of water might irrigate about 4,500 acres or about 7 square miles - a very, very small portion of irrigated farm land in Michigan. Are we going to tax farmers if they sell cherries or potatoes outside the basin, or tell them they can only market products within the basin. Absurd - yes, but a logical conclusion from an illogical policy. The Nestle numbers sound extremely large, but they are literally less than a drop in the Great Lakes water bucket.
It would not be unreasonable to establish a reasonable tax, but only on ultra high users like Nestle. 5 cents a gallon would be $30,587,000 from Nestle even if they got their permit for the additional 400 gallons a minute. Not sure if that is reasonable, seems like it might be on the high side, but understandable that $200 causes resentment.
There are far more important things to worry about - like global warming, health care, Roundup contamination, GMOs, gun control and Trump.

abe bubush
Sun, 01/19/2020 - 1:04pm

Very good points, but a trust needs to be established for restoration of groundwater in the event that the additional withdrawals cause shortages or contamination, since all the math cited in your statement is only hypothetical.

The main problem with bottled water is that it creates an perception that public water is not safe for drinking, and if that perception becomes a societal norm, then infrastructure becomes suspect and prey to notions of "reform", such as privatization. That cannot happen, although it is already underway.

Dave
Wed, 12/18/2019 - 9:47am

There is another water issue that never, and I mean never, gets the exposure it deserves. That is, the removal of groundwater, in the millions of gallons or more, in order to keep mines operating. Water is both intercepted by surrounding wells and/or removed at the site to allow the mining. That water is prematurely sent to streams that affect local groundwater and have impacts as well by sending this water into the Great Lakes. When water is altered or removed for commercial purposes, a reasonable cost, in dollars, should be required as a part of doing business. This is a public asset. This change will come as abuses develop. Let’s get it under way, now!

Brian DuBridge
Wed, 12/18/2019 - 2:58pm

This is a good direction. The legislation should differentiate between water used directly for crops and local use and mass packaged water used for direct profit.

middle of the mit
Sat, 12/28/2019 - 9:57pm

https://www.snopes.com/fact-check/nestle-ceo-water-not-human-right/

[[[The one opinion, which I think is extreme, is represented by the NGOs, who bang on about declaring water a public right. That means that as a human being you should have a right to water. That’s an extreme solution. The other view says that water is a foodstuff like any other, and like any other foodstuff it should have a market value. Personally, I believe it’s better to give a foodstuff a value so that we’re all aware it has its price, and then that one should take specific measures for the part of the population that has no access to this water, and there are many different possibilities there.”]]]

IF this IS this persons philosophy, I would tell them this.

YOU CAN'T HAVE MICHIGAN WATER unless YOU ARE WILLING TO LIVE HERE!

YOU have to live here to experience what Michigan goes through season after season. YOU don't get to live in a warm arid climate and then tell US MICHIGANDERS what WE CAN AND CAN NOT DO WITH OUR WATER! If you don't like freezing climates? Suffer the drought. I am sorry. Truly. But you chose the place you wanted to live in. You chose that for warm climates, sunny skies and NO rain.

Guess what? That is NOT the Greats Lakes Region.

Cold, grey skies and rainy most of the year, with the exception of a few weeks in the middle of the summer. Are you willing to accept that? No more than the Republicans that live in Taxholes would move up here to the Northern Hinterlands and accept a lower wage for less rat race and taxes?

Go figure!