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Mich. Citizens for Water Conservation v. Nestle Waters N. Am., Inc. - 269 Mich. App. 25, 709 N.W.2d 174 (2005)

Rule:

Mich. Comp. Laws § 324.30106 of the Inland Lakes and Streams Act (ILSA) makes it clear that the ILSA does not affect riparian rights and that a permit shall specify that a project shall not cause unlawful pollution. With the exception of the last sentence, there is no language within § 324.30106 that establishes a pollution control standard. Indeed, the entire permitting provision requires the Department of Environmental Quality to evaluate the permit application to determine if the proposed project will adversely affect property rights or the existing uses of the waters or otherwise impair the waters or other natural resources. While these instructions clearly encompass possible polluting effects from the project, the purpose of the statute is not to prevent pollution or environmental degradation, but rather to protect the rights of current water users from potential harm. Hence, ILSA is not a statute whose purpose is to prevent pollution and environmental degradation, and, therefore, is not a pollution control standard the violation of which can support a prima facie violation of Mich. Comp. Laws §§ 324.1701 et seq. of the Michigan Environmental Protection Act (MEPA).

Facts:

Defendant Nestle Waters North America Inc. (Nestle) appealed as of right the trial court's imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, doing business as Pat Bollman Enterprises (the Bollmans). Michigan Citizens for Water Conservation (MCWC) was formed to represent the interests of riparian property owners in the vicinity of the proposed wells, as well, as other interested persons. MCWC cross-appealed the trial court's earlier decision to grant Nestle partial summary disposition on MCWC’s public trust claim. Nestle appealed a decision that was entered for MCWC on claims under groundwater law and the Michigan Environmental Protection Act (MEPA), Mich. Comp. Laws § 324.1701 et seq.; that imposed an injunction barring the company from withdrawing groundwater; and that awarded costs. Plaintiffs appealed the dismissal of their public trust claim.

Issue:

Did the trial court err in utilizing the Inland Lakes and Streams Act (ILSA), Mich. Comp. Laws § 324.30101, and the Wetlands Protection Act (WPA), Mich. Comp. Laws § 324.30301, as a basis to establish per se violations of MEPA?

Answer:

Yes

Conclusion:

On appeal, the court adopted a reasonable use balancing test to resolve groundwater disputes, which required that both parties' reasonable uses be considered. The court found that Nestle’s withdrawals unreasonably interfered with MCWC’s rights; thus, the proper remedy was an injunction limited in scope as to the amount withdrawn, rather than a complete bar from withdrawing any water. The court found that Nestle’s proposed pump amount/rate would still interfere with MCWC’s rights and remanded the case for a determination of the proper withdrawal rate. The court held that the trial court erred in utilizing ILSA,  Mich. Comp. Laws § 324.30101, and the WPA, Mich. Comp. Laws § 324.30301, as a basis to establish per se violations of MEPA because the ILSA and WPA were not pollution control standards, and the trial court failed to make specific findings that Nestle’s conduct had or was likely to pollute the natural resources.

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