Notes from a presentation by Tony Clarke, Director, Polaris Institute, Canada.
In North America, bottled water companies like Nestlé Waters have been able to secure control over underground aquifers and streams by taking advantage of an archaic patch work of regulatory regimes. One of these is called the “rule of capture.” According this law, “ground water is the private property of the owner of the overlying land” and they “have the right to capture the ground water beneath their land.” It is also known as the ‘law of the biggest pump’ because the landowner with the largest pumping capacity “can dry up the adjoining landowner’s well.”
In Michigan, the initial battle lines were drawn around the zoning changes that were required in Mecosta County, and neighboring Osceola County, to allow Nestlé’s to build its water bottling operation. In June and August 2001, referendums were held in both Mecosta and Osceola counties, and rezoning was rejected by a 2-to-1 margin.
In October 2002, a judge ruled that while Nestlé had the right to pump water on a ‘reasonable use’ basis, the company’s water withdrawal has harmed, or is likely to harm, the community residents and the environment.
Nestle appealed this decision and, in November 2003, the Michigan Circuit Court upheld the lower court and “…ordered the company that produces Ice Mountain bottled water to halt all water withdrawals in Mecosta County.” But, in December 2003, Nestlé won an emergency reprieve to continue pumping spring water until its appeal of the circuit court ruling has been heard and decided.
In 2005 on appeal by Nestle, the Appellate Court reversed the lower court decision that landowners along streams have legal standing superior to those bottling water and exporting it out of state. At this time, the Supreme Court is evaluating a segment of the case addressing the legal right to file suit.
Nestle / Ice Mountain contends that the company’s primary issues in the battle are decided — “To a great extent, the case has largely been resolved through the Court of Appeals when it decided Nestle has the right to use water under the rules of the state’s reasonable use laws.” (Deb Muchmore)
Source: Nestlé’s Water Wars The Experience of North America (pdf)