Just got word that the Michigan DEQ has decided, at the very last minute, to appeal the judge's original decision. The Anglers of the Au Sable were looking forward to moving forward with stream improvement projects. Now it looks like we could be tied up in appellate court for years and all the while the pollution plume is spreading.
Date: July 18, 2007
PRESS RELEASE
Contacts: Rusty Gates, President
Anglers of the AuSable, Inc.
989-348-8462
Jim Olson or Jeff Jocks, Attorneys
Olson, Bzdok & Howard, P.C.
Traverse City
231-946-0044 office
231-499-8831 cell
Susan Hlywa Topp, Attorney
Gaylord
989-731-4014
MDEQ and Merit Energy Betrays Its Decision Not to Appeal Kolke Creek Case
The Michigan Department of Environmental Quality and Merit Energy Company have betrayed their earlier statements to the press that they would not appeal Otsego County Circuit Court Judge Dennis Murphy?s decision and order. This decision and order would have shut down the DEQ-backed company?s plan to discharge 1.15 million gallons a day of oil patch treated wastewater into a headwater creek and lake of the AuSable River.
The Plaintiffs in the case, the Anglers of the AuSable and the Mayer and Forcier families who live on the headwaters, filed the suit in 2006 to prevent the ill-conceived plan to use Michigan?s headwaters of the AuSable River system for the discharge of the wastewater.
On May 25th Judge Murphy found, after listening to 13 days of testimony, that Merit Energy lacked riparian rights to discharge the 1.15 million gallons a day of wastewater. Even if they had riparian rights, the company?s proposal was illegal and unreasonable because of the massive alteration and significant harm to the headwaters of Kolke Creek and Lynn Lake, which are part of the AuSable River system. The proposed discharge equals 800 gallons per minute which is more than a 1200% increase in flow for Kolke Creek when compared to the creek?s normal 60 gallon per minute flow. Judge Murphy also found the wastewater discharge plan would unlawfully impair the creek and lake in violation of the Michigan Environmental Protection Act, and that the state-backed plan was not necessary because the clean-up could be contained on the site of the contamination. Judge Murphy found that MDEQ and Merit?s proposed discharge would ?cause significant flooding and erosion,? and ?Given the delicate ecosystem of Kolke Creek, this court finds that it is not a suitable location to discharge large volumes of treated groundwater.?
On July 10th Judge Murphy ordered Merit Energy and the DEQ to reimburse the Plaintiffs over $150,000 in expert witness fees and costs incurred in having to bring the suit and prove the positions of the company and state were ill-conceived and unlawful.
In June, DEQ officials stated that the DEQ had given up on the plan to discharge wastewater to the creek, and would not appeal Judge Murphy?s ruling. DEQ and company officials represented that they would pursue various on-site alternatives without having to discharge to Kolke Creek.
On Monday, July 16 , Merit filed an appeal of Judge Murphy?s decision with the Michigan Court of Appeals, and Tuesday, June 17 ,DEQ officials advised the Anglers and individual plaintiffs in the suit that the state had changed its mind and would appeal.
?The DEQ has shown its true colors. It wants to support and help defend the oil industry to do whatever it wants at the cost of Michigan?s pristine trout streams and the environment,? said Rusty Gates, President and Founder of Anglers of the AuSable.
?This case unveiled a large planned environmental injustice to the headwaters of the AuSable River,? Jim Olson, an attorney for the Anglers said. ?The MDEQ?s and company?s appeals are
inexplicable and without merit. Judge Murphy rejected the credibility of their witnesses and expertsafter hearing overwhelming evidence of harm and the many options to handle the wastewater at the site of the contamination,? he said. ?The appeals are a further perpetuation of this injustice and an unprecedented, blatant breach of the public trust. It looks like the state and company want to ignore reality in order to save face and bludgeon our lakes and streams.?
?It?s pretty clear that Governor Granholm and her administration favor big oil to the detriment of the public, our lakes and streams, private landowners, and the environment,? Rusty Gates said. ?This is wrong. And even though our own state government is taking sides with an oil company seeking to harm the stream we love, we refuse to quit.?
Janney Mayer Simpson whose family owns land along Kolke Creek and Lynn Lake which will also be impacted if MDEQ and Merit?s plan is implemented will also continue the fight. ?We have always tried to be stewards of this beautiful headwaters system because we thought it was our duty to the AuSable River, the people of Michigan and all of those around the world who cherish the river.? ?The appeal is further evidence that DEQ and Merit Energy want to reverse the stewardship of my clients toward this delicate headwaters system. It is unacceptable,? said Susan Topp, attorney for the individual plaintiffs.
