Undercurrents: beneath the obvious

December 20, 2006

A Brief History of Nestle’s Water Battles in Michigan

Filed under: Bottled Water,Great Lakes History,Michigan,Water Diversion — nemo @ 10:32 pm

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)

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December 9, 2006

Current Great Lakes water diversions

Current Diversions

The waters of the Great Lakes are, for the most part, a nonrenewable resource. They are composed of numerous aquifers (groundwater) that have filled with water over the centuries, waters that flow in the tributaries of the Great Lakes, and waters that fill the lakes themselves. Although the total volume in the lakes is vast, on average less than 1 percent of the waters of the Great Lakes is renewed annually by precipitation, surface water runoff, and inflow from groundwater sources.

Because the Basin is a nonrenewable resource, water diversions (especially diversions out of the basin) are hot political issues. Here’s a look at current water diversions.

The Chicago diversion from Lake Michigan into the Mississippi River system is the only major diversion out of the Great Lakes Basin.

The Longlac and Ogoki diversions into Lake Superior from the Albany River system in northern Ontario are the only major diversions into the Basin. The Longlac and Ogoki diversions represent 6 percent of the supply to Lake Superior.

At present, more water is diverted into the Great Lakes Basin through the Longlac and Ogoki diversions than is diverted out of the Basin at Chicago and by several small diversions in the United States.

  • Longlac and Ogoki diversion = 3.6 billion gallons per day into Lake Superior
  • Chicago diversion = 2.1 billion gallons per day out of Lake Michigan

In addition to these diversions in and out of the Great Lakes Basin, the Welland and Erie Canals divert water between subbasins of the Great Lakes and are considered intrabasin diversions.

Aside from these major diversions, there are also a few small diversions:

  • Forrestport, New York diverts waters of the Black River into the Erie Canal and the Hudson River watershed
  • Portage Canal diverts Wisconsin River waters (Mississippi Basin) into the Great Lakes Basin.
  • London, Ontario, and Detroit take water from Lake Huron for municipal purposes. London and Detroit discharge their effluent to Lake St. Clair and the Detroit River, respectively
  • The Raisin River Conservation Authority in New York takes water from the international section of the St. Lawrence River to maintain summer flows in the Raisin River
  • The communities of Pleasant Prairie, Wisconsin, and Akron, Ohio, which lie outside the Great Lakes Basin take water from the Great Lakes on the condition that they return an equivalent volume of water over time to the Basin
  • Haldimand, Ontario takes water from Lake Ontarioa

Source: CGLG Current Great Lakes Diversions (pdf)

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December 2, 2006

A Brief History of the Great Recycling and Northern Development (Grand) Canal Project

Canadian Provinces

The Great Recycling and Northern Development (GRAND) project (called the Grand Canal) is certainly one of the larger proposals having to do with Great Lakes diversions.

The Grand Canal project involves building a dyke across James Bay, separating James Bay from Hudson Bay. James Bay would be transformed from a salt body into a fresh water lake. The now-fresh water James Bay would then annually pump 20% of its runoff to the Great Lakes, whose water could then be redirected to dry regions of the United States and Canada.

The Grand Canal — estimated in 1994 to cost $100-billion to build and another $1-billion a year to operate — envisaged a string of nuclear reactors and hydro dams to pump water uphill, and nine inter-basin transfer locations. All told, 17% of the fresh water in Quebec and Ontario would have been captured and reversed.

This water would then be diverted from the Great Lakes to the U.S. Midwest or to Lake Diefenbacker in Saskatchewan and then on to the U.S. South, Southwest, and perhaps Mexico.

This $100 billion project has been called the “darling of the engineering industry.” The chief proponent of the GRAND Canal project is Thomas Kierans of St. John’s, Newfoundland.

First proposed in 1959, this enterprise continues to be on the drawing board and periodically rises to a higher profile.

The Great Recycling and Northern Development (GRAND) Canal concept was revived in 1985. The project briefly captured the imagination of a number of Canadian public figures, including Quebec premier Robert Bourassa.

However, it has never been seriously advanced by any government.

Thomas Kierans incorporated GRANDCo (a privately – held St. John’s [Newfoundland] company) on 15 October 1984 to advance the Grand project. Although GRANDCo is in a “state of suspension,” Kierans is still actively promoting the idea.

Some observers believe that large-scale engineering projects such as the Grand Canal were foreseen in the U.S.-Canada-Mexico free trade discussions; before his appointment as Canada’s negotiator for the Canada-United States Free Trade Agreement, Simon Reisman was a director of GRANDCo Ltd.

Rather than building the complete project at once, the more likely scenario would be the construction of small parts of the project one at a time.

Source: The Fate of the Great Lakes: Sustaining or Draining the Sweetwater Seas?

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A Brief History of the Chicago Diversion

The Chicago diversion is the largest and best known out-of-basin diversion of the Great Lakes.

In 1848, the Illinois-Michigan Canal was opened to shipping traffic. This resulted in the diversion of 240 million liters per day (mld) or 64.6 million gallons per day (mgd) of water from Lake Michigan at Chicago through the Chicago and Illinois Rivers to the Mississippi River.

At that time Chicago’s sewage flushed into the slowly moving, almost stagnant Chicago River and thence into Lake Michigan — the source of Chicago’s drinking water. In 1885, 90,000 people died in Chicago from cholera as a result of this situation; this was over 10% of the city’s population.

Because of this disaster, the Drainage and Water Supply Commission and the Sanitary District of Chicago were formed. The commission built a new channel and control structures to reverse the flow of the Chicago and Calumet Rivers so that sewage from Chicago would flow through the Illinois River to the Mississippi. The canal was completed in 1900.

During the 1920’s, the Chicago diversion was as high as 24,000 mld (6,463 mgd). In 1967, the U.S. Supreme Court limited the diversion to 7,600 mld (2,068 mgd), the level it is supposed to be at today.

The Chicago diversion has three components. The first component, 62 percent of the diversion, provides the water supply for the 5.7 million residents of northeast Illinois. The second component is a direct diversion from Lake Michigan into the Illinois River and Canal system for safe navigation and to increase flow in order to improve water quality in the Chicago area. The third component, 20 percent of the allowed diversion, is storm water runoff that would have flowed into the Chicago River and from there into Lake Michigan, but which now flows the opposite direction into the Mississippi watershed.

The level of flows at this diversion has always been a controversial topic because it is the largest diversion out of the Great Lakes Basin and always threatens to increase. The current allocation of 7,600 mld (2,068 mgd) averaged over a forty-year period was established by a U.S. Supreme Court decree issued in 1967 and amended in 1980.

In 1995, a dispute arose between Michigan and Illinois because approximately 740 mld (200 mgd) more water was being diverted from Lake Michigan through the Chicago diversion than allowed by the court decree. Illinois argued that a “paper change rather than a physical change” in the diversion had occurred. The state said new, more accurate velocity flow meters were being used to measure the diversion and that canal locks maintained by the U.S. Army Corps of Engineers were leaking. Michigan argued that Illinois “can’t pretend that one number is another.”

The federal government and the eight Great Lakes states took this dispute to mediation. Illinois and Michigan requested that the Army Corps of Engineers be granted authority under the Water Resources Development Act to proceed with necessary repairs to eliminate leakage through the locks.

In October 1996, the concerned parties came to an agreement in which Illinois agreed to reduce the out take of water from Lake Michigan to the amount set in the 1967 and 1980 court decree. In return the eight Great Lakes states agreed not to take legal action over the withdrawal violations that had already occurred.

Today, nearly 7 million northeastern Illinois residents live outside the lake’s drainage basin – more than half of the state’s total population – yet are fortunate enough to have access to lake water because of this diversion.

And so the continuing good fortune of Chicago suburbs attracts the covetous eyes of southeastern Wisconsin officials.

Source: The Fate of the Great Lakes: Sustaining or Draining the Sweetwater Seas?

A Brief History of Great Lakes Diversion Projects

The New York State Barge Canal, which has been in operation since the early 1800s, diverts a small amount of water to the Hudson River watershed.

1848-1899. Chicago River reversed (“Illinois Diversion”) diverting water from Lake Michigan down the Chicago Sanitary and Ship Canal and eventually to the Mississippi River to reverse flow of untreated domestic sewage into Lake Michigan and Chicago’s drinking water intakes.

1939-1943. Water begins to be diverted into Lake Superior from the Long Lac and Ogoki watersheds (Ontario) in the amount of 5580 cubic feet per second (3.6 billion gallons per day) for hydromanufacturing for WWII.

Proposed in the 1960’s, The Great Recycling and Northern Development project, known as GRAND, involved constructing a barrier to separate James Bay from Hudson Bay to keep out salt water and thereby create an enormous freshwater reservoir. GRAND also proposed to reverse the flow of some Canadian rivers to take water from the James Bay and transport it into Lake Huron where it could be further pumped to water-hungry communities across North America.

1981. The Powder River Coal Company proposes to build a $2.1 billion coal slurry pipeline to the Great Lakes to bring western low-sulfur coal to the mid- west. The proposal includes a fresh water line to Gillette, Wyoming for feed for the coal slurry line. For the proposal to go forward, the company must obtain authority for eminent domain from the Federal government. The Federal government does not give the company eminent domain, and therefore the project does not go forward.

1982. The U.S. Army Corps of Engineers performs a study on the possibility of diverting Great Lakes Water to recharge the Ogallala Aquifer, which stretches from Wyoming to Texas. After the study is completed, the U.S. Army Corps of Engineers refuses to allow the proposed diversion to go forward.

1990. The Village of Pleasant Prairie, Wisconsin seeks and receives approval from the Great Lakes Governors to divert 3.2 million gallons per day from Lake Michigan for public water supply purposes.

1992. The City of Lowell, Indiana is denied approval for a diversion of 2 million gallons per day for public water supply purposes. The proposal is vetoed by the Michigan Governor John Engler.

1995. The Great Lakes Charter’s prior notice and consultation procedure for in-basin withdrawals exceeding 5 million gallons per day consumptive use is initiated when Michigan’s Mud-Creek Irrigation District proposes to use Great Lakes water that will result in a consumptive loss of between 5-6 million gallons per day. Despite objections raised by Indiana Governor Evan Bayh and the Canadian Premiers of Ontario and Québec, the proposal goes forward.

1998. The City of Akron, Ohio seeks and receives approval from the Great Lakes Governors to divert up to 4.8 million gallons per day from Lake Erie for public water supply purposes. Approval by all Governors stipulates requirement to achieve no net loss by returning an amount of water to the Great Lakes basin equal to the amount of water withdrawn from the Great Lakes basin.

1998. The Nova Group (Ontario) requests and receives a permit from the Ontario Ministry of the Environment to ship (in bulk containers) approximately 160 million gallons per year of raw water from Lake Superior for the purpose of selling the water “in Asia.” Because the amount of water withdrawn is less than 5 million gallons per day average over any 30-day period, and because the proposal is in Canada, neither the Great Lakes Charter’s prior notice and consultation requirements nor the WRDA are applicable. The permit is rescinded in response to strong objections raised by the Great Lakes Governors and the general public.

2002. Nestlé/Perrier (Ice Mountain) water bottling plant in Stanwood, Michigan, 50 miles north of Grand Rapids, Michigan. The plant does not withdraw directly from the lake, but an aquifer that feeds the Muskegon River, which flows into Lake Michigan. Ice Mountain has been permitted by the Michigan Department of Environmental Quality to withdraw up to 400 gallons a minute since May, 2002, even though a judge said the state had no standard to issue the permit. The judge shut down the Ice Mountain bottling plant in 2003.

A Brief History of the Great Lakes Charter

1985. In response to the 1982 Wyoming coal slurry proposal, the Ogallala Aquifer regeneration study and other “Grand Proposals” to divert Great Lakes water, the Great Lakes Charter of 1985 is signed by all ten Great Lakes Governors and Premiers. The Charter — a good faith agreement — commits the Governors and Premiers to:

  • Give prior notice to and consult with each other before approving any new or increased diversions or consumptive uses over 5 million gallons per day average over any 30-day period;
  • Manage and regulate all new withdrawals that resulted in a new or increased diversion or consumptive use of Great Lakes water over 2 million gallons per day average over any 30-day period; and,
  • Collect and share comparable information on all Great Lakes water withdrawals of 100,000 gallons per day average over any 30-day period.

1986. Two versions of the Water Resources Development Act of 1986 (WRDA) are passed by the U.S. House and the Senate. The 1986 WRDA is a large omnibus bill that, among other things, authorizes for construction and/or study 270 U.S. Army Corps of Engineers’ projects. Congress inserts a provision (Section 1109) that prohibits all new diversions of Great Lakes water out of the Great Lakes States unless approval is given by each of the Great Lakes Governors. In addition, Section 1109 would “…prohibit any Federal agency from undertaking any studies that would involve the transfer of Great Lakes water for any purpose for use outside the Great Lakes basin,” effectively preventing any future studies similar to the 1982 Ogallala Aquifer recharge study.

The House and Senate versions of this bill are sent to a House and Senate conference committee. The committee is charged with resolving the numerous differences (primarily differing spending authorizations) between the House and Senate versions of the WRDA. During the course of these negotiations, Section 1109 is revised to prohibit all new diversions out of the Great Lakes basin unless approval is given by each of the Great Lakes Governors.

The conference committee’s version of the WRDA bill, including Section 1109, is passed by both chambers and signed by the President. The legislation does not include any standard or process to be used when reviewing proposals to divert Great Lakes water, nor any process for appealing any such decision.

1987. Water Resources Management Committee (created by the Great Lakes Charter of 1985) releases a report entitled “Managing the Waters of the Great Lakes Basin” (pdf).

May, 1999. At the request of the Great Lakes Governors, the Great Lakes Protection Fund provides the Governors with a commissioned legal report (the “Lochhead Report”) describing the current legal framework governing management of the Great Lakes waters. The report also highlights the potential legal vulnerabilities of the current framework, including the lack of a standard to be used when the Governors exercise their WRDA authority over diversion proposals. The Lochhead report also provides recommendations for addressing those vulnerabilities.

October, 1999. At their Leadership Summit in Cleveland, Ohio, the Great Lakes Governors and Premiers release a joint statement committing to update the legal framework governing Great Lakes water management to ensure that authority for managing the Great Lakes remains with the Great Lakes Governors and Premiers. In their statement they specifically pledged to:

  • Develop a new agreement that will bind the States and Provinces more closely to collectively manage the Great Lakes.
  • Develop a new common standard against which water projects will be reviewed.
  • Secure funds to develop a better base of Great Lakes water use data.

February, 2000. The IJC (International Joint Commission) releases its report entitled Protection of the Waters of the Great Lakes: Final Report to the Governments of Canada and the United States. Among their many recommendations, the IJC recommends that “…[T]he Great Lakes States and Ontario and Quebec, in carrying out their responsibilities under the Great Lakes Charter, should develop….the standards and the procedures … that would be used to make decisions concerning removals or major new or increased consumptive uses.”

September, 2000. The U.S. Congress passes an amendment to Section 1109 of the 1986 WRDA, adding a prohibition of exports of Great Lakes water unless approval is given by all eight Great Lakes Governors. In addition, the amendment “… encourage[s] the Great Lakes States, in consultation with the Provinces of Ontario and Quebec, to develop and implement a mechanism that provides a common conservation standard embodying the principles of water conservation and resource improvement for making decisconcerning the withdrawal and use of water from the Great Lakes Basin.”

Decmber, 2000. The Governors and Premiers Water Management Working Group releases for a 60-day public comment period a draft Annex to the Great Lakes Charter of 1985. Substantive revisions are made to the Annex.

June 18, 2001. In Niagara Falls, New York, the Great Lakes Governors and Premiers together sign the Great Lakes Charter Annex of 2001 (“Annex 2001”).

December 13, 2005. The Great Lakes — St. Lawrence River Basin Sustainable Water Resources Agreement (“Agreement”) (pdf) is signed by all ten Great Lakes Governors and Premiers. In addition, The Great Lakes — St. Lawrence River Basin Water Resources Compact (pdf) is endorsed by the eight Great Lakes Governors who urge its passage by the eight Great Lakes legislature, and who also urge that the U.S. Congress provide its consent to the compact.


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