Rachel R. Schwarz
Water Quality Specialist
Little Traverse Bay Bands of Odawa Indians
Perrier is attempting to establish a water bottling facility using water pumped from the Sanctuary Springs site in Mecosta County, Michigan. Bottled water would be sold under the brand name “Ice Mountain.” They would withdraw spring water at the rate of 210,000,000 gallons per year. The bottled water business is highly profitable, and Perrier stands to net profits of between one-half million dollars and $1.8 million per day. Profitability is directly related to the price paid for the raw material, which is free.
On February 22, 2002, the Little Traverse Bay Bands of Odawa Indians, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Little River Band of Ottawa Indians, filed suit in Federal Court against Great Spring Waters of America (a subsidiary of the Perrier Group of America, Inc.) and Michigan’s Governor John Engler. The Tribes are asking the Federal Court to interpret and enforce the federal Water Resources Development Act (WRDA) as it applies to Perrier’s proposal to extract approximately 500,000-720,000 gallons of water per day from a site in Mecosta County, bottle the water, and ship and sell much of it out of the Great Lakes Basin. This water would otherwise ultimately flow into Lake Michigan.
The WRDA is intended to protect the Great Lakes Basin for the benefit of the public by requiring the governor of each of the Great Lakes states to approve any diversion or export of water from the Basin. No State Governor, except Governor Engler, has approved this project. While Governor Engler does not believe that the protections of WRDA apply to this project, Michigan’s Attorney General, Jennifer Granholm, and U.S. Senator Carl Levin have expressed the opinion that Perrier’s diversion and export of water falls within those protections. To protect the Great Lakes, the three Tribes seek a declaration from the Court that WRDA applies to this project and asks for an injunction stopping the project unless and until the governor of each of the Great Lakes states expressly approves the project.
In Governor Engler’s response to the complaint, he admits that the water from the aquifer at the proposed pump site flows to Osprey Lake, which in turn flows into a stream that is part of the Little Muskegon and Muskegon River Watershed, which flows into Lake Michigan. Engler also admits that Perrier’s project will or is likely to reduce the flow of Lake Michigan tributary waters, yet he denies that the project would result in any diversion of Great Lakes water, or that the project would fall under the scope of WRDA.
The Tribes have a profound interest in protecting the Great Lakes based on their continuous reliance on the lakes for commercial and subsistence fishing. The Tribes’ right to fish the Great Lakes for subsistence and commercial purposes was reserved in the 1836 Treaty with the federal government. In 1979, a federal court affirmed the treaty right. The plaintiffs in this lawsuit are the modern day political successors of the bands of Ottawa/Odawa and Chippewa Indians who, for hundreds of years prior to the arrival of non-Indians, occupied the area of cession described in Article First of the 1836 Treaty that is now included within the State of Michigan. For centuries, the Tribes’ members have subsisted in large part by engaging in usufructuary [the right of enjoying the advantages derivable from the use of something that belongs to another] activities and other activities on both the lands and the waters within Michigan’s territorial boundaries. Tribal members made good use of the natural resources available to them — including the flora and fauna in their environment — for food, medicines, clothing, shelter, and heat.
The Indians of the treaty area were heavily engaged in commercial fishing at the time of the Treaty of 1836, both as employees and as independent fishers. Fishing remained an important activity of the Indians of the treaty area throughout the remainder of the 19th century, and has continued through the 20th century and this century to present day. Indian fishers still live in the same areas and fish on the same fishing grounds as did their ancestors for centuries past.
The Great Lakes are already at very low levels, which makes them particularly vulnerable at this time. Decreased lake levels will result in the destruction or reduction of critical breeding habitat for fish species needed for subsistence and commercial purposes, and impair navigation necessary for harvest and transport of fish. The Tribes strongly believe that any project that removes water from the Great Lakes Basin must be strictly scrutinized under WRDA. The cumulative effect of many small projects or the location of any particular project could have disastrous effects on fishing and navigation in the Great Lakes. Removal of any water from the Great Lakes Basin is a significant environmental issue and must be carefully considered by all interested parties. The WRDA provision that the Tribes seek to enforce — the provision that requires the express approval of all of the governors of all the Great Lakes states — is intended to insure broad-based decision-making that promotes the protection of the Great Lakes.