Appeals panel backs township's denial of Nestle water permit

Beth LeBlanc | The Detroit News

Lansing — A state appeals court has overturned a lower court decision that would force a Michigan township to grant a permit for a disputed water pumping station.

The Michigan Court of Appeals ruling released Tuesday involved a zoning request for a controversial water withdrawal near Evart by Nestle Waters North America, but the three-member appeals panel did not dive into a much-debated state permit allowing Nestle to pump more groundwater from the location for its Ice Mountain brand.

Osceola Township denied a 2016 zoning request from Nestle Waters North America to construct a booster pump in an agricultural zone because the community found the company failed to meet a “public convenience and necessity” standard.

Nestle had requested a permit for the pump station to transport additional water that it is seeking to withdraw from the White Pine Springs well near Evart through a separate permit from the Department of Environment, Great Lakes and Energy, said William Fahey, a lawyer for Osceola Township.

It wasn't immediately clear whether Nestle would meet its planned 400-gallon-per-minute withdrawal rate without the booster pump station in Osceola Township.

Nestle has not begun pulling the increased capacity because the state permit was contested, said EGLE spokesman Scott Dean. The state is awaiting the opinion of an administrative law judge on the matter, he said.

The company said it is "disappointed" by the Court of Appeals decision and is evaluating its next steps.

"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," said Ice Mountain Natural Resource Manager Arlene Anderson-Vincent. "In addition, the structure would be a positive contribution and would provide additional tax revenue to Osceola Township."

An Osceola County Circuit Court judge reversed the township's rejection and forced the township to issue a zoning permit because the “commercial bottling operations supplied a public demand.”

A three-judge Court of Appeals panel reversed the circuit court order, arguing in a 3-0 decision that it was “clearly erroneous” to call Nestle’s operations an “essential public service.” The decision came from Court of Appeals judges Cynthia Stephens, Deborah Servitto and Amy Krause — all of whom were appointed by Democratic former Gov. Jennifer Granholm.

Further, the township’s ordinance does not allow for extraction operations that “irretrievably” deplete resources and the booster pump station would play a role in Nestle’s water extraction efforts, the opinion said.

“Plaintiff contends that the draw down will be modest, local, and not affect other wells’ ability to produce water,” the panel's opinion said. “Nevertheless, 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 of Appeals noted that the township’s denial of a permit for the pump station only limited its means of transporting water, not the withdrawal itself.

“…denying a zoning permit for the facility does not have the effect of regulating plaintiff’s removal of water from the ground,” the opinion said.

In May 2018, the then-Michigan Department of Environmental Quality approved Nestle’s application to remove 400 gallons of water per minute from the Osceola Township aquifer. It had been permitted to withdraw 250 gallons per minute.

Nestle paid a $5,000 application fee and will continue to pay an annual reporting fee of $200 to extract 576,000 gallons per day of Michigan groundwater.

The increased withdrawal drew complaints from environmental groups up to and after the state’s approval of the increase.

The environmental department and the Department of Natural Resources — overseen by former Republican Gov. Rick Snyder — and then-Attorney General Bill Schuette’s office had agreed that Nestle’s application met state standards and wouldn’t hurt the water supply. But the state agreed to monitor the area closely for depletion problems.

eleblanc@detroitnews.com