State Court of Appeals rules against Nestle's Ice Mountain bottled water in zoning dispute

Nestle's Ice Mountain bottled water operation in northern Lower Michigan is not an essential public service, its bottled water is not a public water supply, and Osceola Township was within its rights to deny the company zoning approval for a new booster pump station to move its water, the Michigan Court of Appeals ruled Tuesday.

Nestle Waters North America pursued the pump station in anticipation of receiving final approval on a plan to increase water withdrawals from its White Pine Springs well in Osceola Township from 250 gallons per minute to 400 gallons per minute. The Michigan Department of Environment, Great Lakes and Energy approved the increased water withdrawal in April 2018, after earlier finding it "is not likely to cause an adverse resource impact," meaning it won't impact populations of fish in the Chippewa Creek watershed, a tributary to the Muskegon River, or decrease stream flows to the point of natural resource impacts.

Critics, however, say impacts from water withdrawals at current levels can already be seen in nearby wetlands and streams.

Environmental groups appealed the permit issuance, and a ruling on the groundwater withdrawal increase is expected from an administrative law judge by early 2020.

Tuesday's ruling, by appellate judges Cynthia Diane Stephens, Deborah Servitto and Amy Ronayne Krause, reverses an Osceola County Circuit Court judge's affirmation of Nestle's arguments that because water is essential for life, and Nestle's bottled water meets a public demand, it can't be disallowed by zoning.

"As an initial matter, the circuit court's conclusion that plaintiff's commercial water-bottling operation is an 'essential public service' is clearly erroneous," the appellate judges stated.

While water is indeed "essential to human life, as well as to agriculture, industry, recreation, science, nature and essentially everything that humans need," selling bottled water for a profit "is not essential."

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"Essential public service" is a term one sees in many local zoning ordinance exceptions, but it most typically applies to electrical wires and substations, water and sewer pipes and the like, said Okemos attorney William Fahey, who represents Osceola Township in the case.

In an emailed statement Tuesday, Ice Mountain Natural Resource Manager Arlene Anderson-Vincent said the company is disappointed in the appeals court ruling.

"We firmly believe that the Circuit Court was correct in ordering Osceola Township to issue a permit for our request to build a small, 12-foot-by-22-foot building, to house a booster pump," she said. "We believe the plan we proposed met the Township’s site plan and special land use standards. We will evaluate our possible next steps in the legal process."

The appellate court also ruled that the pump station was not an "extractive operation," as the actual well removing groundwater is 2 miles from the proposed pump station. But even if it were considered an extractive operation, it could still be denied under township zoning because "according to (Nestle's) own documentation, the effect of its pumping operation will be to 'draw down' the water table in the vicinity."

"Extracting the water and sending it to other places where it cannot return to the water table and, critically, doing so faster than the aquifer can replenish, is an 'irretrievable' depletion unless the pumping is reduced or halted," the court ruled.

The appellate ruling is significant for local government control, Fahey said.

"Even though the state ultimately controls whether you can withdraw water from out of the ground, townships can still govern pipelines and booster pump stations that might be used to transport that water once it's taken out of the ground," he said.

The pump station is proposed about 2 miles away from the White Pine Springs well "to allow a greater amount of water to be transferred through their pipeline," Fahey said. The pipeline goes through Osceola Township to a truck-filling station in Evart, where it's then taken to the Ice Mountain plant in Stanwood in neighboring Mecosta County.

The area proposed for the pumping station is zoned for agricultural use, and it's "smack-dab in the middle of a children's summer camp," Spring Hill Camps, Fahey said.

For area residents and environmentalists concerned about the bottled water company's impacts on local streams and wetlands, the ruling feels like a victory.

"It is a really big deal," said Liz Kirkwood, executive director of Traverse City-based nonprofit For Love of Water, or FLOW.

"It’s really significant for the court to go through this very careful analysis to distinguish what bottled water represents — how it is not an essential service, how it is not part of the public water supply."

Tuesday's ruling was unpublished, meaning it's not intended to be precedent-setting in other cases. But groups or individuals can ask the appellate court to publish the ruling, and given the potential significance of its determinations on for-profit bottled water companies, that could happen, Fahey said.

"I have not yet decided one way or the other, but if my client approves, I may ask the court to publish its ruling myself," he said.

Fahey noted that the state's consideration of the increased water withdrawals by Nestle reviewed it as a public water supply.

"Do we have to go back and take new evidence?" he said. "Do we have to go back and re-decide? That's not my case — it's something for (EGLE) to decide."

Nestle waters has worked to be a good neighbor to Osceola Township for 17 years, Anderson-Vincent said.

"From the beginning, our goal with this request has been to reduce, as much as possible, any impact to the local community and the environment," she said.

Contact Keith Matheny: 313-222-5021 or kmatheny@freepress.com. Follow on Twitter @keithmatheny