EVART — Bottled water is not essential.
So said the Michigan Court of Appeals in a ruling Tuesday.
The Court of Appeals sided with Osceola Township over Nestle Waters North America regarding a zoning dispute. Nestle wants to build a booster station in the township so it can pump and then move 400 gallons of water per minute for the purpose of being bottled and sold to consumers. But the township says the booster station would not be appropriate under their zoning ordinance.
The Court of Appeals, in an unusually long 13-page unpublished opinion, tackled several approaches to the dispute, siding resoundingly with the township.
“The court was pretty thorough,‘ said Bill Fahey, the township’s attorney. Sometimes, the Court of Appeals writes unpublished opinions using a (metaphorical) belt and set of suspenders. “This particular opinion appears to have two belts and three sets of suspenders ... The court’s not buying any of the arguments that Nestle made.‘
That included an argument from Nestle that Osceola Township was breaking the law by trying to block a large quantity water withdrawal.
“This is simply plaintiff’s own interpretation of what has transpired,‘ the court said. “Ultimately, the Township is attempting to enforce its zoning ordinances. Enforcing a zoning ordinance is neither exceptional nor forbidden.‘
The Court of Appeals further rejected Nestle’s suggestion that the township and the Zoning Board of Appeals had been “improperly influenced‘ by public opposition to Nestle’s plan to increase its water withdrawal in Osceola County. The court said commissions and boards are supposed to take popular opinion into account, so long as they don’t overstep the “constraints imposed on them by law.‘
The Circuit Court in Osceola County, helmed by Judge Susan Sniegowskii of Mason County after local judges recused themselves from the case, ruled in favor of Nestle in December 2017. That prompted a two-year appeals process.
Tuesday, the Court of Appeals issued its decision and said the lower court’s “conclusion that plaintiff’s commercial water-bottling operation is an ’essential public service’ is clearly erroneous.‘
While water is essential to human life, the Court of Appeals said, bottled water is not, except for where there is no water source.
“We agree with the trial court’s observation that water is essential to human life, as well as to agriculture, industry, recreation, science, nature, and essentially everything that humans need,‘ the Court of Appeals wrote in the unpublished opinion released Tuesday. But the court went on to say, “Other than in areas with no other source of water, bottled water is not essential.‘
The court also ruled that the booster station would conflict with the area’s A-1, agricultural zoning.
“Nevertheless, extracting the water and sending it to other places where it cannot return to the water table, and, critically, doing so faster than the aquifer can replenish, is an ‘irretrievable’ depletion unless the pumping is reduced or halted ...‘ the Court of Appeals said. “The evidence shows that the process itself would conflict with the prohibition in (the ordinance) against irretrievably depleting a resource critical to agriculture.‘
The court went on to note that the booster station does not withdraw water from the ground; it moves the water. Nestle has other ways to do that, the Court of Appeals said.
Punctuation was a key part of lawyers’ arguments in 2017.
The Court of Appeals said the township’s zoning ordinance “is not a model of clarity,‘ but still sided with the township regarding the punctuation issues.
“We conclude that there are two plausible ways to make grammatical sense of the Ordinance provision, both of which arrive at the same outcome, and neither of which supports plaintiff’s interpretation,‘ the Court said.
Nestle could choose to appeal the case to the Michigan Supreme Court, and has 42 days from Tuesday to do so, Fahey said. But the state Supreme Court would not have to accept the case, and if it did, the decision might not come for another two years from now.
In a statement Tuesday afternoon, Nestle said it was disappointed in the decision and is evaluating “possible next steps in the legal process.‘
“From the beginning, our goal with this request has been to reduce, as much as possible, any impact to the local community and the environment,‘ said Arlene Anderson-Vincent, natural resources manager for Nestle’s Ice Mountain brand. “In addition, the structure would be a positive contribution and would provide additional tax revenue to Osceola Township. Nestle Waters has worked to be a good neighbor to Osceola Township for over 17 years.‘
This is one of two cases Nestle has regarding its plan to pump 400 gallons-per-minute at the White Pine Springs well near Evart. The Department of Environmental Quality (now the Department of Environment, Great Lakes and Energy, or EGLE) gave the company a permit to increase its pumping volume from 250 gallons-per-minute to 400 gallons-per-minute, but faces an appeal from Michigan Citizens for Water Conservation. An administrative law judge is expected to issue that decision in February.
If the EGLE permit stands, Nestle will need extra oomph to keep the additional water moving. That is why the company wants to build the booster station at SpringHill Camp in Osceola Township. The company typically describes the proposed building as “a small, 12-foot by 22-foot building.‘