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  • By Lisa Brody

Spring water bottling operations concern

The controversy escalated recently because Nestle Waters North America, which has a number of bottled waters and beverages in its portfolio, including Ice Mountain from Michigan’s groundwater; Acqua Panna; Arrowhead; Deer Park; Poland Spring; Perrier; San Pellegrino; Zephyrhills; and Ozarka; currently pumps more than 130 million gallons of water a year from Evart, Michigan, and areas nearby, in the northwestern part of the lower peninsula. In the last year the Nestle company has been seeking a permit from the Michigan DEQ to allow them to increase their capacity by up to 60 percent more. Some water experts contend that natural recharge from rain and snowfall are replenishing whatever is being removed by Nestle, while others disagree, pointing to dry streams and dying trout as a byproduct of the bottled water operations here.

Is the Great Lake State in danger of going dry? Definitely not. And overall, neither are aquifers. But concerns remain.

“Spring water is bottled from very small, fragile water bodies, where even a small amount can have a large environmental impact,” said Wayne State University law professor Noah Hall, who also runs the Great Lakes Environmental Law Center. “It can devastate the trout population of a spring, while it will not change the Great Lakes. The environmental impact on a small scale is very much up for debate – how well is the law working versus protecting vulnerable streams from excessive water pumping.”

Representatives from the bottled water industry contend that it is in their best interest to protect the environment, having made large investments in the state, as well as providing jobs and infrastructure.

“Businesses that set up bottling facilities are extremely concerned about making sure their water sources will be available for many, many years,” said Jill Culora, vice president of communications, International Bottled Water Association. “To that end, they take steps such as buying and protecting the land area surrounding the water source and facility, monitoring and measuring water use and withdrawals, and reducing the amount of water used in production. In many cases, state or local governments set limitations on water withdrawals to protect the sources. Compared to other industries, bottled water uses a very small amount of water – just .011 percent of all water used in the United States and .02 percent of all groundwater used. In addition, bottled water uses less water than any other packaged beverage to produce.”

“People don’t realize how much water there is, and how much recharge there is,” said hydrologist Lou Vittorio of Earth Resources, which has done research for Nestle, although none on the company’s projects in Michigan. “Users of these wells are interested in having their sources sustainable. They don’t want to dry up their source because they’ve put in an investment. They don’t want to dry up their plant and not have it available for their use.

“A one-liter bottle of water takes 1.3 liters of water to make, versus other products which take much more water, like beer, soda and beef,” Vittorio said.

“Nestlé Waters North America has a deep commitment to Michigan, its people and the natural resources we share. We have made a long-term investment in Michigan and take great care to operate in a responsible and sustainable way to protect our shared water sources and the surrounding environment. For over 15 years, we have proudly created jobs and supported community needs, while managing our operations to ensure long-term sustainability,” said Arlene Anderson-Vincent, Natural Resource Manager, Ice Mountain in Michigan. “Nestlé Waters North America’s pending application before the MDEQ is based on over 15 years of extensive studies and regular monitoring of groundwater, surface water and the local ecosystem. We are confident in the expertise of the professional scientists – both from inside and outside the company – who collect and evaluate the data. In support of our application, we have provided an unprecedented amount of data to the state of Michigan. We have over 100 environmental monitoring sites and have conducted numerous scientific assessments near the White Pine Springs well. This monitoring network confirms that our water use is managed for long-term sustainability. Rainfall and snowmelt recharges the aquifer every year at a rate higher than our proposed withdrawal, meaning that we’re taking out less than what nature is putting back in.”

Colura from the bottled water group concurred. “People often don’t realize that water is a renewable resource. Groundwater is recharged from rain and snow, and volumes vary from state to state.”

The position of industry spokespersons is reaffirmed by Jim Spink, supervisor of Liberty Township west of Jackson, who said water withdrawals by Absopure in the area have never impacted the surface waters of Clarklake “going north to Jackson or west to Lansing. There’s no sustainable impact in my opinion to the (Grand) River, to the township, or to the flow. The amount they withdraw a day is much less than an agricultural well withdraws a day. We don’t have any complaint with Absopure. They’ve been a good corporate neighbor. Most people don’t know they’re there. Here, we don’t see an impact.”

He said he understands Absopure withdraws approximately 10 semi trucks worth of groundwater a day, “and there are 10,000 gallons in a semi, so that’s 100,000 gallons a day. I’m a farmer, and the rate of capacity of my irrigation well, I draw about 1.1 million gallons a day. But I have recharge.”

He pointed out that in the area, “it’s very porous down to the aquifer because it’s very gravelly.”

In northwest Michigan, Evart City Manager Zackary Szakacs did not return repeated request for comment, but in the past has said that Nestle’s purchase of water keeps costs low for the 2,000 residents of the city, who have a median income of $19,000, and that it’s a good partnership for the town. The city is paid approximately $250,000 a year in water fees. When Nestle moved its operation to Mecosta County in 2000, state and local officials gave them a $13 million, one-time tax break.

While Nestle’s permit request initially appeared like it would receive a rubber stamp approval, growing backlash over Nestle’s push to pump increasingly more water out of Michigan has prompted greater review and public hearings by the DEQ. Since it was announced last year that the DEQ was ready to sign off on a 67 percent capacity increase on the high volume well Nestle owns in Osceola County, the DEQ has received well upwards of 14,000 comments, most of which oppose the increased water extraction. Included in the debate has been concern about water depletion, Nestle taking the water for “free” – because they only pay a $200 permit fee – and that they then sell the water at a profit.

Ileene Anderson, a senior scientist with the Center for Biological Diversity in California, said that Nestle does not pay for water in California when pumping for its Arrowhead brand water in the San Bernardino Mountains either, an area which has experienced drought the last several years. Maine, where Nestle gets its Poland Spring water, is among a few states that does charge a small amount for extracting groundwater for bottling. But the Center for Biological Diversity said it does not know of any national organization or database which tracks states efforts – or lack of – to charge for groundwater extraction, regardless of how precious a resource it is.

Michigan, New York, California, and several other states have what are known as “reasonable use” laws, meaning property owners can extract water from wells as long as it doesn’t affect other wells or the aquifer systems. And it is important to note that Nestle owns the land it has its wells on, and at least in Michigan the groundwater below belongs to them.

“It’s part of the property rights in all of the state, in rural areas. The groundwater is considered part of your property. It’s how farmers are able to put in irrigation wells,” explained Nick Schroenk, law professor at Wayne State University and director of Transnational Environmental Law Center. “So Nestle owns that property. They can pay this permitting fee and the electrical costs to get water out of the ground. The only exception is you can’t use groundwater to the point where it is detrimental to neighboring property owners. If I use so much groundwater that I harm a neighbor’s well, or divert so much water from a stream, so they get less water from it, that’s an issue. That’s why the DEQ has been undergoing a review to see if there’s an adverse impact to natural resources. That’s how the legal framework is set up.”

In California, Nestle has long paid the U.S. Forest Service an annual rate of $524 to extract about 30 million gallons, even during droughts.

“This became very important to us with the ongoing drought and its impact to Strawberry Creek,” Anderson said. “Nestle has been diverting so much water, the creek is going dry and endangering native species. There are puddles where the creek was – there’s no actual water flow. It’s stress to the fish. It wasn’t even originally Nestle that had the permit, but a prior company which Nestle bought, and they’re operating under an old permit which had expired in the 1980s. We believe they shouldn’t be operating in 2017 on a permit that expired in 1988.”

She noted they filed a federal lawsuit to prevent Nestle’s operation, which they lost. “We’re appealing it now.”

Water-rich Michigan is different, at least on the surface. But below ground, the water is as valuable as gold to miners.

Michigan Citizens for Water Conservation, which led a group that sued Nestle and prevailed in 2003, and then finally settled with the multinational corporation in 2009, with Nestle agreeing to reduce pumping from 400 gallons a minute to 218 gallons per minute, with certain restrictions in spring and summer, and residents hoping there would be less environmental impact.

Now, they are going after Nestle again, with a decision expected in mid-November after this issue of Downtown went to press. Nestlé’s Anderson-Vincent said, Nestlé Waters has worked to be a good neighbor to Osceola Township for over 15 years. We value our relationships with township residents and community leaders, and always strive to create shared value within the communities where we operate.”

“It’s a national issue, but Nestle is operating locally,” Wayne State’s Hall noted. “There have been similar concerns and fights all over the country. Nestle is everywhere, and they’re using a playbook. How it plays out in one state sets a precedent elsewhere – and Nestle likes the withdrawal laws in Michigan.”

A question remains, how much water extraction is too much water?

“In general terms, there’s not broad concern about aquifer depletion or over-taxing our resources. We’re a water-rich state. It’s why a lot of industries want to locate here,” noted Andrew LeBaron, environmental quality analyst with Michigan DEQ.

In 2016, LeBaron said, there were 472 requests for large quantity withdrawals, although not all were approved. Of those, a majority were from agricultural concerns, which use very large quantities of water for irrigation purposes, and for manufacturing in the state, for all sorts of purposes, including in the automotive industry.

Of those 472 requests, 80 were for approved water bottlers. “Most of those are customers of some municipal water system,” LeBaron said.

As for bottlers of spring water, the numbers show that they are minor in comparison, with Nestle with nine wells, including four wells at one site; Absopure, which is headquartered in Plymouth, has four wells in Jackson County; Millbrook Water Company, a small bottler with one well located in Mecosta County, near where Nestle owns its land and wells; White Cloud Natural Spring Water, in Newago County, also has one well; and Shay Water Co., in Saginaw, has one.

“The threshold in the law is that if they are pumping less than 1.5 million gallons a year, they just have to check a box on the reporting form and they don’t have to indicate how much they are pumping,” LeBaron said. “It can really be the size of the wells and how much they pump from them more than the number of the wells.”

Howard Reeves, a research hydrologist with the United States Geological Survey (USGS), agreed with LeBaron’s assessment that Michigan’s water is generally secure. “There have been questions raised on both sides. Some say there is not conservation and enough protective measures being taken, holding things up, and on the other side, some say they’re too conservative. But yes, as to protecting groundwater and aquifers, while there are challenges, overall, I think so.”

He said a 2008 state review process by USGS was intended to be proactive, “to prevent any adverse impact from any high capacity well, which we define is more than 70 gallons a minute for at least a 30-day period.”

Primary high capacity well users are municipalities, industry, agricultural users, and water bottlers, Reeves said.

“We define an adverse impact as what is defined by the Department of Natural Resources (DNR), which is how the ecology would be changed by the impact on the flow for an area, but not on every stream’s reach,” he explained, noting there are about 6,000 little catch basins stationed around the state that are looked at. “We look at the flow leaving that little catchment. What happens is, you might have a few streams meeting up to join a larger stream. One small stream may be impacted (by water extraction), but the whole stream area has a level of protection.”

Reeves explained the concept behind the assessment and legislation that was passed by the Michigan legislature in 2008 was the idea is that “you can’t protect everything from all impact, because any development will have some impact on groundwater. You’re looking to have protection to the system as a whole while looking at various areas of the whole state.”

Reeves believes overall, groundwater and aquifers are being protected.

“Are there challenges? Yes, I think so. But overall, it is proactive,” he said, “because it watches how much water can be removed from an area. People are working around the state to help determine how much can be removed from certain areas, to see if the removal from certain wells is impacting the stream flow.”

Spring water comes from aquifers, which are underground layers of rock which are saturated with water from natural sources that can be brought to the surface through natural springs or by pumping. The groundwater that is contained in aquifers is considered one of the most important sources of water on earth, and according to the National Oceanic and Atmospheric Administration (NOAA), about 30 percent of the liquid freshwater we have across the globe is groundwater. The remainder is found at the surface in streams, lakes, rivers and wetlands. A majority of the world’s freshwater – about 69 percent, according to NOAA, is locked away in glaciers and ice caps.

Much of the drinking water society depends upon is contained in shallow aquifers which are accessed through wells. Water in an aquifer can be held beneath the earth’s surface for centuries; hydrologists estimate that there is water in some aquifers that could be more than 10,000 years old. Other water in aquifers is weeks, or months, old, having been refreshed by recent rainfall. But there is a limit as to how deep drilling into an aquifer’s well can go, noted USGS hydrologist Steven Phillips, because the deeper you drill, the saltier the liquid becomes.

“Groundwater can be very, very deep, but eventually it’s a brine,” Phillips said. “For freshwater, the depths are limited.”

In addition, he cautioned, once an aquifer is contaminated, it’s extremely difficult to remediate. Hence the necessity to watch groundwater contamination from fertilizers and other contaminants.

In Michigan, hydrologists say there is an added benefit with aquifers because the ground is very permeable, permitting water to flow easily through it to underground aquifers. According to Idaho Museum of Natural History, aquifers must be both permeable and porous and “include such rock types as sandstone, conglomerate, fractured limestone and unconsolidated sand and gravel. In order for a well to be produced, it must be drilled into an aquifer. Rocks such as granite and schist are generally poor aquifers because they have a very low porosity. A well is a hole drilled into the ground to penetrate an aquifer, (and) normally such water must be pumped to the surface. If water is pumped from a well faster than it is replenished, the water table is lowered and the well may go dry.” Areas with heavy clay ground have poor aquifers and groundwater because it is difficult for the water to travel through.

They explain that groundwater is so clean because aquifers are natural filters that trap sediment and other particles, such as bacteria, and provide natural purification of the ground water flowing through them, similar to how a coffee filter works as coffee is being brewed.

The same works in reverse, as the areas are “recharged” with rainwater and snowfall, replenishing the aquifers.

“Are we in danger of depleting our aquifers? Absolutely,” said Liz Kirkwood, executive director of For Love of Water (FLOW), an advocacy group in Traverse City whose mission is to protect the common waters of the Great Lakes Basin through public trust solutions, disagreeing with state experts. “So many of the issues of the last several decades are coming up now because of Nestle, Flint (lead and water contamination), Detroit (water shut offs), Oakland County (the 48-inch main collapse). We are at a moment that is abundantly clear that states don’t have a good handle on groundwater extraction. There is a shared vision that we must have clear, safe drinking water.”

Besides ensuring that groundwater is not contaminated, FLOW works against what they consider is the privatization of public water, water equity and depletion of groundwater. They were instrumental in challenging the bottled water industry – notably Nestle – and worked to get the Great Lakes Law established in 2006 in Michigan, also known as the water withdrawal law, which regulates large quantity water withdrawals.

According to the 2006 law, “large quantity withdrawals” are any withdrawals greater than 100,000 gallons a day averaged over a 30-day period. Every large quantity withdrawal must be registered with the MDEQ, and then permitted, unless it is for agricultural purposes, and then it must be registered and permitted by the Michigan Departure of Agriculture.

Volumes of the large quantity withdrawals must be reported to MDEQ by April 1 of each year on a specific form, with an annual $200 reporting fee. The bill is designed to “prohibit a new or increased large quantity withdrawal from causing an ‘adverse resource impact.’ An adverse resource impact is defined as impairing the lake or stream’s ability to support its characteristic fish population. Taking too much water from a stream will change the flow depth, velocity and temperature of the stream and hence the types of fish expected to be found there.”

Initially, the bill only applied to streams with trout, but in 2008, it prohibited adverse resource impact to all lakes and streams.

The bill also required a permit for certain new or increased large quantity withdrawals of greater than two million gallons per day, of which there is a $2,000 permit fee, unless they are a local unit of government.

The law specifically stated, “A new permit is required for a water bottling operation that uses a new or increased large quantity withdrawal of more than 250,000 gallons per day. This permit can only be granted if the withdrawal would not cause an adverse resource impact, the use is reasonable under traditional Michigan water law, riparian rights are protected, and the water bottler undertakes activities to address the hydrologic impact of the withdrawal.”

The law developed a water withdrawal assessment process that determines the impact of a specific withdrawal on river systems by calculating the effect of the stream flow reduction on fish populations.

In 2008, to strengthen the law, it was amended to expand the permit system as well as to create an assessment process to determine whether a proposed withdrawal could create an adverse resource impact to river systems in Michigan. It required permits for all new and increased withdrawals over two million gallons per day for any source, including the Great Lakes, inland lakes and rivers, and groundwater. The law permitted the withdrawals only if they met specific standards, and do not violate public or private rights and limitations imposed by Michigan water law or other common law duties, and require public notification of any water withdrawal application, as well as a public comment period of at least 45 days.

For bottle water withdrawals, the bill lowered the threshold for permits for bottled water withdrawals to 200,000 gallons per day. It also changed its assessment of a “large quantity withdrawal” as a withdrawal of over 100,000 gallons per day averaged over a 30-day period, stating that withdrawals of that size are prohibited from streams, rivers or groundwater because it causes an adverse resource impact.

“There’s a loophole in the 2006 law, that while they technically can’t divert water from the Great Lakes, it allows containers of 5.7 gallons or less to leave the state,” Kirkwood said, which she pointed out is how the bottled water industry gets around the law and removes water from Michigan.

“There is a rush to the water near the area of bottle water withdrawals, and concerns to wetlands and streamflow in small springs can have major detrimental effects to the area near where the pumps are located,” said Transnational Environmental Law Center’s Schroenk. “But there are also impacts to neighboring ecosystems when you remove water from springs, because it affects areas downstream, when you think about the amount of water being removed – there’s the impact to rivers, wildlife, nature, fish. When we compare the amount of water Nestle is bottling out of the Great Lakes, it’s a drop in the bucket. But that’s not an accurate assessment, because it’s the impact to the local watershed we’re most concerned about.

Reeves from USGS said they go out and measure the rivers all over the state, “and we can determine how much came from runoff or groundwater flow. There are a couple hundred stations around the state... We estimate the flow of the rivers over time and look at the long record. Scientists then determine how much is from runoff or baseflow. Usually with a well, the numbers sound large, but compared to most rivers and streams, it’s a pretty small number. It gets people worked up because the numbers get so big, that they’re pumping a million gallons a day. But a million gallons a day is only 1.8 cubic feet a second. Even modest size streams are tens to hundreds of cubic feet per second.

“We’re trying to track the potential impact of the number of wells going, and as you add more and more, there is a greater impact,” Reeves noted. “We’re looking for the cumulative impactive of many wells.”

“My hunch is there has been so much public interest going to the DEQ on this Nestle permit increase – if they were just going to increase the permitting, they may increase it, but perhaps not the full 400 million gallons Nestle is requesting, because Nestle can’t prove that there will not be some negative impact to that local watershed. It’s a significant loss to that ecosystem,” Schroenk continued.

Oakland County Water Resources Commissioner Jim Nash, a water environmentalist, said that wells drilled into one area have a huge impact on wells farther away. “They’re (water bottlers) taking such large withdrawals that it spreads and pulls from other wells,” he said. “It affects the whole ecosystem. It may be limited by geography, but it can have an effect.”

Schroenk said scientists and environmentalists are less concerned about the quantity bottlers like Nestle are removing per day, than the quality, “because for example, municipal systems like Great Lakes Water Authority are permitted to withdraw how many millions of gallons of water a day. It doesn’t matter if it’s General Motors (withdrawing water) to build car parts, municipal customers, or Pepsi to bottle water, it’s the impact.”

Unlike Nestle, which around the country withdraws natural spring water from groundwater and sells it in bottled water, PepsiCo and Coca Cola use municipal water – yes, basic tap water from local water systems, which is then further purified, bottled and sold, in Pepsi’s case as Aquafina, and in Coke’s, as Dasani. Charging money for what people can pour from their sinks. Locally, they bottle municipal water from the Great Lakes Water Authority – good old Detroit tap water.

Which raises another issue which troubles those opposed to water bottling: the commodification of public water by private entities.

“The $200 permit fee, sure it’s a problem, but what’s not clear is the solution,” Professor Hall said, noting that an increase could open the door to greater commodification. “We have to be careful how we raise money on water. We don’t want to budget on the stewardship for water from permitting of water use – at least not without more checks and balances on the permitting process. In legal precedence, there’s greater distrust in permitting of water, because water does not belong to the government – it belongs to the public. It’s part of the public rust. It’s not capable of being owned. The government’s role is as a trustee. So, even for a big whopping fee, the government can’t ‘sell’ it.”

The latest battle from activists is now water equity, protecting water because it is a public right. FLOW’s Kirkwood said they have been working with state legislators, with House Bill 5133 introduced in October 2017 by state Rep. Peter Lucido (R-Shelby Township), that would levy an excise tax of five cents per gallon on the production of bottled water and would provide for the collection and administration of the tax, penalties, with monies raised being used for infrastructure improvements in the state. It is currently with the Natural Resources committee.

“It’s not just protecting water in natural pristine watersheds, it’s protecting people’s drinking water in major metropolitan areas,” Kirkwood said. “Our perspective is through the public trust lens. It means holding state leaders accountable so the municipal infrastructure is kept public and the reason that matters is we have seen when municipal infrastructure systems have become privatized, water rates and problems have increased for citizens.”

“If they take oil out of the ground, they have to pay for it. They should have to pay for our water,” said Oakland County’s Nash. “If it’s our resources, they should have to pay for it. In Michigan, we’re looking for revenues. They’re taking it without paying for it. I think that’s unfair.”

“We tax other beverages – liquor, beer, and wine. If you include water bottlers, I think it’s appropriate to consider. It’s a fee on their business,” Schroenk said. “Water as a commodity raises all sorts of ethical issues because we need water to live.” ­

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