1836 treaty puts Michigan tribes at center of Nestle water bid
Updated on June 6, 2017 at 6:40 AM Posted on June 6, 2017 at 6:30 AM
By Garret Ellison
TRAVERSE CITY, MI Native American tribes with treaty rights to natural resources north of Grand Rapids are quietly coordinating with Michigan officials who are deciding whether to let Nestle Waters North America extract more spring water from trout stream headwaters where the tribes have inland fishing rights.
According to state officials, tribes in the Chippewa Ottawa Resource Authority (CORA) have met with the Michigan Department of Environmental Quality, other regulatory agencies and Gov. Rick Snyder's liaison three times since MLive revealed in October that Nestle was asking permission to pump more water.
The tribes are getting monthly briefings on the application review as a government-to-government courtesy and are asking to get an early look at technical and scientific documentation in support of a final permitting decision.
The tribes are concerned that allowing a 400 gallons-per-minute (gpm) withdrawal on Nestle's White Pine Springs production well in Osceola Township might affect the wetlands, streams, flora and fauna in an area where the state of Michigan has a legal duty under a 181-year-old treaty to protect wildlife habitat for tribal use.
If the pumping were to harm the environment, the tribes say the law considers that tantamount to an unallowable "taking" of property. In a Feb. 27 letter to the DEQ, CORA director Jane TenEyck argued the state "may not lawfully permit any diminishment whatsoever of these treaty-reserved resources."
Tribal treaty rights add another legal dimension to a controversial application that has generated significant opposition among the general public, which has flooded the DEQ with negative feedback about Nestle's request to increase pumping from a spring aquifer near Evart to bottle under the Ice Mountain water brand.
Nestle says the pumping won't substantially harm the local environment, a claim that public opponents dispute and of which the tribes are skeptical.
"Nestle certainly did not address this issue in its initial application, and, to my knowledge, hasn't addressed the issue since then," said Bill Rastetter, a Traverse City attorney representing the Grand Traverse Band of Ottawa & Chippewa Indians.
Rastetter notified the state of a tribal interest in early November. He said the 1836 Treaty of Washington gives five Native American tribes a paramount right to protect natural resources in a 14-million-acre swath of Michigan that includes much of the northern Lower Peninsula and the eastern Upper Peninsula.
Tribal rights to fish inland of the Great Lakes were confirmed in a 2007 agreement with the state that acknowledged tribal rights to hunt, fish and forage on land that Ottawa and Chippewa ancestors ceded to the federal government prior to Michigan gaining statehood in 1837.
Modern day successors to the treaty include the Grand Traverse Band, the Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Little River Band of Ottawa Indians and Little Traverse Bay Bands of Odawa Indians.
Rastetter, an attorney at the Traverse City law firm co-founded by longtime Nestle foe Jim Olson, said the agreement gives the tribes standing to join any potential lawsuit that might arise from a DEQ decision on whether to give Nestle its permit.
The five tribes have met with officials from the DEQ, Department of Natural Resources, the Attorney General's and governor's office three times; on December 14, February 7 and April 18. There have also been monthly conference calls with tribal leaders and different state departments hosted by Snyder's tribal liaison David Nyberg where the Nestle permit has been discussed, according to the DEQ.
The February meeting involved all federally recognized tribes in Michigan.
Tribal questions about the proposed withdrawal were added to a list of supplemental information the DEQ requested from Nestle on February 14.
James Goodheart, DEQ tribal liaison, said tribal concerns closely mirror those raised by the general public, but tribal feedback is being tabulated separately. Formal public comment on the application ended on April 21.
The DEQ Office of Drinking Water & Municipal Assistance and the Water Resources Division are overseeing the application review, which the DEQ is not under a deadline to complete. Presently, the DNR is helping evaluate potential habitat impacts.
The tribes are asking for early access to technical information supporting a permit decision prior to any issuance. Rastetter said tribal leaders want their own natural resources staff to scrutinize the data before taking a formal position.
Some tribal staff expressed skepticism that Nestle could show the increased water withdrawal wouldn't harm wildlife habitat.
Mike Ripley, environmental coordinator for CORA, said the tribes are concerned not only about Nestle's withdrawal, but a major water withdrawal proposed by a potash mine under development near Hersey, as well as other agricultural, industrial and municipal water withdrawals from the Muskegon River watershed.
Ripley said Nestle has not reached out or adequately assured the tribes that the company's proposed pumping increase won't harm the environment. He's reviewed Nestle's application documents on the DEQ website and is skeptical that pumping water from the headwaters of a spring-fed coldwater trout stream won't affect flow and temperature, and thus impact fish habitat.
Ripley said Nestle is "not being forthright" with real-time pumping data from the well and has relied on estimates based on computer models to support is application.
Although the state did not inform the tribes about Nestle's application prior to its disclosure in news reports on Oct. 31, Ripley said he's been satisfied with the state's efforts to keep the tribes in the loop since then. In early 2016, DEQ water resources staff gave Nestle a go-ahead to increase the pumping rate, but the company needs a second level of permit review before it can actually twist the dial.
"We hope (DEQ) will continue to be diligent in making sure all the information is given and there won't be any impacts -- or that the permit will be denied for 400-gallons-per-minute," Ripley said. "I think it's becoming clear that 400-gpm is too much of an extraction from that area."
In a statement, Ice Mountain natural resources manager Arlene Anderson-Vincent said that Nestle was not aware of the tribal interest until just recently.
"We respect and recognize the tribes' sovereign status in Michigan as we do all Native American groups across the country," she said.
"We recently learned that the tribes had filed comments about our application, but have not seen those comments nor have we received a request from the tribes to discuss their position. While as far as we know, the tribes do not have land or water claims on the areas in which Nestle Waters operates, we welcome the opportunity to meet with the tribes and listen to their concerns."http://www.mlive.com/news/index.ssf/2017/06/nestle_waters_michigan_tribes.html