Kolke Creek

Why Kolke Creek Matters

Kolke Creek - A Headwater Tributary to the Au Sable River


Shell Oil Co. (Shell) operated a production facility located on the Mount Frederick Road in Hayes Township, Otsego County, Michigan. During Shell’s operations toxic chemicals, benzene, toluene, ethyl-benzene and xylene (BTEX) were spilled. Those chemicals were part of a spill seeping into the environment from five different sources at a gas and oil complex called Hayes 22. A large toxic plume was created and is moving southwest toward a residential area and the headwaters of the Manistee River. Presently, two private water wells have already been destroyed.

Merit Energy purchased Shell’s interest in the wells and has assumed the responsibility for the clean-up. Merit Energy proposed a clean-up plan and received a general permit and certificate of coverage from the Michigan Department of Environmental Quality (DEQ). The general permit and Certificate of Coverage (hereinafter collectively referred to as the “Permit”) allows Merit to extract contaminated groundwater, treat it with an air stripper and filters. Thereafter, pipe the 1.15 million gallons of treated water per day, 1.3 miles over state land to Kolke Creek. This Creek flows into Lynn Lake and ultimately into the mainstream on the Au Sable River. The Anglers of the Au Sable (Anglers) and Lynn lake Property Owners (LLPO) are challenging DEQ’s granting of a permit to allow Merit Energy to discharge over a million gallons a day of treated water from the Manistee headwaters into the headwaters of the Au Sable mainstream. Anglers and LLPO contend that the permit was issued without adequate notice to the public and without the involvement of Michigan Department of Natural Resources (MDNR) field staff. No environmental impact statement was prepared and no public hearing was held. The effects of this dumping, if it is allowed to proceed, include increased flows and water levels, erosion, sedimentation, pollution, changes in water chemistry, temperature modification of the local ecology and unnatural transport of water between watersheds.

The Anglers and LLPO further contend that viable alternative methods exist for Merit Energy to stop the plume and cleanse the contaminated water on Merit property. The proposed alternatives do not require the transfer of 1.15 million gallons of water per day from Manistee’s watershed to the Au Sable’s watershed. On site remediation is also preferred because in the event of equipment failures or leaks, everything is kept within the boundaries of the Hayes site. Anglers and LLPO seek a permanent injunction prohibiting Merit’s proposed containment of the plume and remediation of the contaminated water.


The Anglers hope to halt the DEQ approved method of air-stripping petrochemicals from the groundwater and then dumping the so called treated water into another watershed. Furthermore,this lawsuit is important because it tests the right of the oil industry to use the headwaters of our lakes and streams as a dumping ground for its treated wastewater. The Merit Energy remediation proposal is a very large artificial intrusion on a natural water system that has reached equilibrium over centuries.

Finally, what would be the environmental and economic loss if Merit Energy’s proposed remediation method does not work? The entire mainstream would suffer the effects of BTEX contamination. Such a result would be catastrophic environmentally and economically for headwaters and the entire Au Sable mainstream. Anglers believe this may very well be the most important litigation of our time effecting of the State’s rivers and watersheds.
Path to Nowhere

Kolke Creek - Reverse Chronology (2005 to present)

November 2008 - The Court of Appeals has scheduled a hearing December 9th in Grand Rapids.  There have been 2 procedural victories in the Court of Appeals over filing by Merit Energy.  At this point Merit's legal alternative as coming to a standstill  and it time to go forward with the remediation efforts on-site.  

September 2008 - This issue appears to be in limbo.  Merit has been using an infiltration pond and injecting on site.  (Addendum:  The Anglers have received notice that this will be heard in Appeals Court in Grand Rapids on 9 December 2008.)

June 2008 - It appears that this will not be back in court until late summer or early fall.  Merit has applied for a new permit to allow an infiltrate of a maximum of 400 gallons of water per minute. 

February 2008 - This issue was in court this month.  It was ruled that the DEQ illegally issued a cleanup permit to Merit Energy in March 2005.  This decision by Judge Murphy reversed a May 2006 decision.  Merit Energy has obtained a new study that indicates that infiltration to the Au Sable system could not handle the full flow, but might now propose that 200-400 cu ft per minute would be acceptable.  It was noted that the variances to the Clean Water Act can be granted by the state.  There were arguments that by-products could be devastating to the environment especially the chlorides and bromides. 

July 2007 - In late May, 46th Judicial Circuit Court Judge Dennis F. Murphy ruled that the proposed discharge to Kolke Creek was clearly unreasonable, and would violate the Michigan Environmental Protection Act. "The use of surface water discharge is not necessary given the feasible and prudent alternative methods available for remediation of the contamination. The delicate ecosystem of Kolke Creek is not a suitable location for the discharge of treated water in the quantities proposed. These quantities will cause flooding, erosion, sedimentation, and turbidity that will harm aquatic life throughout Kolke Creek and Lynn Lake, and this harm significantly outweighs any benefits of utilizing Kolke Creek".

Hazardous-ExtremelyMarch 2007 - Thirteen days of hearings were held in the 46th District Court. Most of the testimony put forth involved volume and flow, specifically in regard to the volume that would cause erosion and sedimentation to travel downstream. The discharge system is designed to pump 700 gallons per minute, 24/7.The Anglers were able to produce Hydro Geologists, an Ecologist, and remediation specialists to prove beyond a doubt that this discharge would have a significant impact on the upper watershed. An additional focus was that Merit did not consider other alternatives and put these alternatives on the table for consideration.

September 2006 - Our attorneys have filed a motion in the 46th Circuit Court for Preliminary Injunction to stop any discharge into the Au Sable headwaters stream. It is expected the request for Injunction will be turned into a trial.

February 2006 - The Contested Case Hearings in front of an Administrative Law Judge in Lansing were ongoing. This is the process of disputing the NPDES permit itself. Merit has filed a motion attacking the Anglers "Standing" in the case.

May 2005 - Merit Energy has requested a National Pollutant Discharge Elimination System (NPDES) discharge permit to dump treated water that was contaminated by a broken oilfield pipeline into Kolke Creek. The DNR only became aware of this when Merit requested permission to cross-State land with their pipeline. There have been huge objections by both Forestry and Fisheries Divisions of the DNR. There was sixty days to contest this permit. Anglers attorneys will file an appeal of this permit with DEQ in Lansing, for the environmental impact could be monumental on the Au Sable River system.