Reading the Michigan Court of Appeals decision in the Ice Mountain case today yields mixed reactions. The Court at least did not buy Nestle's unscientific assertion that its huge and unsustainable pumping rates of water from springs feeding a Muskegon River tributary were doing no harm. The Court put a strict limit on the amount of water to be pumped.
But by applying a "balancing test" to Nestle's use of the water, the Court made a terrible mistake that only the people of the state, it appears, can correct. In effect the Court held that Nestle has a right to use of the water just like any streamside cottage owner, farmer, or manufacturer -- even though it removes 100% of the water from the watershed, unlike all the others, and claims to own the water as a product. The implication of that reasoning is that every stream in the state could be open to a water taking and sale operation. And that private ownership of water will be untrammeled despite the fundamental difference between it and all traditional water uses.
It's regrettable and unfortunate that the Michigan DEQ supported a balancing test in its legal briefs. If the agency -- charged with being the public's advocate -- had held firm in defense of public trust protection of all waters, the Court might have ruled differently.
If the Legislature won't protect traditional water users, including agriculture, manufacturing, municipal water supplies and private cottage owners, then the people will have to do it themselves through a referendum. Otherwise, the Great Lakes are vulnerable to a hostile takeover by private water takers, and sellers.
Posted by Dave at November 30, 2005 09:57 PM