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138863, 138864, 138865, 138866 - Anglers of the AuSable, Inc. v DEQ

Anglers of the AuSable, Inc., Mayer Family Investments, LLC, and Nancy A. Forcier Trust,
 
Jeffrey L. Jocks
 
Plaintiffs-Appellants,
 
v
(Appeal from Ct of Appeal)
 
 
(Otsego – Murphy, D.)
 
Department of Environmental Quality, Director of the Department of Environmental Quality, and Merit Energy Company,
 
S. Peter Manning
 
Defendants-Appellees.
 

Summary

​Merit Energy Company arranged with Department of Environmental Quality to treat an underground “contaminant plume” resulting from crude oil releases emanating from Merit’s Hayes 22 Central Production Facility in Otsego County. The contaminated groundwater was to be treated by a process known as “air stripping” that removes contaminants and discharges treated water. Under the arrangement, which might last for 10 years, the treated water was to be carried by a 1.3 mile pipeline that Merit constructed on land owned by the Department of Natural Resources. The water would be discharged on DNR land and shortly thereafter would flow into Kolke Creek, then into Lynn Lake, and on into the AuSable River. The plaintiffs either own property along Kolke Creek or Lynn Lake or use these waters, as well as the AuSable River, for recreation and trout fishing.
The plaintiffs intervened in an administrative proceeding in which the DEQ granted Merit a Certificate of Coverage that allowed Merit to discharge the treated water. The plaintiffs also filed a lawsuit in circuit court, claiming violations of their common law riparian rights and a violation of the Michigan Environmental Protection Act, MCL 324.1701 et seq. The plaintiffs also sought review of the administrative decision granting the Certificate of Coverage. The circuit court treated the administrative appeal separately, and eventually reversed. After a 13-day trial regarding the plaintiffs’ common law riparian rights claims and the MEPA claim, the circuit judge ruled in the plaintiffs’ favor. The circuit judge enjoined any discharge of treated water by Merit into Kolke Creek, but left open the possibility that a reasonable discharge could be determined.
 
Merit and DEQ appealed separately, and the plaintiffs cross-appealed in the appeal filed by Merit. The Court of Appeals affirmed in part and reversed in part in a published opinion. The Court of Appeals agreed with DEQ that it was not a proper party to the MEPA action. Moreover, contrary to the circuit court’s ruling, the appellate court determined that Merit had riparian rights by virtue of an easement from DEQ to Merit. The Court of Appeals rejected the arguments in the plaintiffs’ cross-appeal.
 
The plaintiffs appeal. Since this appeal was filed, Merit has determined that it will not discharge water into Kolke Creek, and it has accordingly abandoned the DEQ permit and easement permitting it to do so.