Nestlé-style water withdrawals would be easier in Michigan under new bill, critics say

A bill proposed in the state House of Representatives would make it easier for large-scale groundwater withdrawals — and make it more difficult for the public to know about them or react to them, according to environmentalists.

State Rep. Aaron Miller's House bill 5638 would allow farms or businesses siphoning large amounts of Michigan groundwater to bypass the state Department of Environmental Quality's modeling tool currently used to evaluate such proposals. Applicants could instead gain approval by submitting their own experts' analyses that streams and fish would not be adversely impacted. And if the applicant is a farmer, all of their submitted data and analyses — even how much water they propose to withdraw — would be exempt from disclosure under the Michigan Freedom of Information Act.

"This bill is not stewardship — it is a shift of our state’s common public waters in favor of special corporate interests," said Jim Olson, environmental attorney and founder of the nonprofit For Love of Water, or FLOW.

"It signals the world, 'We’ve made it easier for you to take our water, come and get it.' "

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Miller, R-Sturgis, says he only wants to help farmers in his southwest Michigan district avoid costly delays in getting water for their crops and livestock, using the best science possible to ensure rivers and streams are protected. The bill was crafted with help from the Michigan Farm Bureau.

"I've heard from farmers for my entire time in the Legislature — how hampering the process is to get a well approved by the DEQ, and how the DEQ's process does not reflect the accurate, up-to-date science" of the current status and dynamics of groundwater below a proposed well, Miller said.

"St. Joseph County may be the most irrigated county east of the Mississippi River, and is the most irrigated county in the state of Michigan, for sure. Farmers have been withdrawing water here for many, many years, and here we are at record flooding in southwest Michigan. I don't think that's an accident.

"We could run thousands more wells, I'm sure, and I bet the science would back up the fact that we are not adversely affecting the watershed. Whatever the real science says, though, that's what should rule the determination."

At issue is the state's Water Withdrawal Assessment Tool, an interactive, online evaluation of proposed large water withdrawals that looks at impacts to fish and stream flows through comparative data and modeling. Gov. Jennifer Granholm signed a law in July 2008 requiring the tool's use for all large-capacity water withdrawals in Michigan.

An applicant submits data, including the location, rate of withdrawal and operating time of a proposed groundwater well, and the tool analyzes the proposal and gives it a green, yellow or red light. Applicants whose well proposal is rejected by the tool can appeal and go through a review in which their plan is individually evaluated by DEQ staff.

"It's where farmers can wait for a long time and spend a lot of money, sending in a lot of tests, and they may not get their well," Miller said.

Under the bill, if an applicant submits documentation from an expert on hydrology or on how water interacts with rocks and soil, showing a proposed withdrawal will have no adverse impacts, the well can proceed. If the DEQ wishes to contest it, the operation can still proceed, but within two years, the well operator must submit to the state regulator the results of five pump tests, at which time a determination is made of whether adverse impacts to stream flows or fish have occurred.

"It's kind of reversed — the DEQ has the burden of proof," Miller said. "It's on them to prove if there's an adverse resource impact."

That "cripples the process" of review, said Bryan Burroughs, executive director of the nonprofit Michigan Trout Unlimited.

"It means there is never a 'no,' " he said.

Allowing applicants to use their own experts also opens up the process to "gaming," Burroughs said.

"These are subjective procedures that any paid consultant can play with," he said.

One of the most controversial water withdrawal proposals in recent years is Nestlé Waters North America's request to increase its groundwater pumping by 60% — from 250 gallons per minute to 400 gallons per minute — at one of its wells in Osceola County, to feed expansion at its Ice Mountain bottled water facility in nearby Stanwood. The state's Water Withdrawal Assessment Tool initially rejected the proposal, saying it would cause adverse impacts to nearby streams and fish. But the company appealed and DEQ staff subsequently recommended approval.

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The public process of evaluating the Nestlé proposal allowed state residents to attend meetings, voice their concerns, and prompt the DEQ to look at other potential impacts, Olson said. But that couldn't happen under Miller's bill for certain applicants, he said. The bill would exempt from disclosure under the Freedom of Information Act "agricultural withdrawals, data and analyses submitted to" the DEQ.

"That's heavy-handed corporate favoritism," Olson said.

"The way this is set up, the headwaters, lakes, streams and wetlands could be seriously harmed, and nobody would be able to know about it because of the filing in secrecy."

Garnering far less attention, but taking far more water, is farming. Agricultural irrigation is considered one of the biggest consumptive uses of large-scale water withdrawals, meaning the water does not return to the basin after it's used. That's because a significant percentage of the water, once it flows to crops, is lost to the local water system through plant absorption, evaporation and runoff. The 1,457 farms reporting large-scale water withdrawals to the state Department of Agriculture and Rural Development used 105 billion gallons of mostly groundwater in 2015.

Matthew Smego, manager of government relations for the Michigan Farm Bureau, said the geologic variability of different parts of the state isn't being adequately considered in the up-or-down approval of water withdrawal applications.

"What this legislation is intending to do is create a clear, scientific standard based on what the tool is designed to do," he said. "It gives the department some additional ways of measuring and sets the bar on when that data is sufficient.

"This legislation does not change the fact that any water use cannot cause an adverse resource impact to a tributary."

A hearing on Miller's bill is slated for Wednesday in the state House's Natural Resources Committee.

Michigan's water resources belong to the public, Olson said.

"Farmers and the rest of us have a right to use it, but only a reasonable use. Not a secret, massive use."

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