Letter to the Editor: Missouri water-rights law left hanging

These three simple words – “certainly and inevitably” – may have a lasting impact on the quality and quantity of our groundwater supply in southwest Webster County for future generations.

Unless overturned on appeal, the recent decision by Special Judge Frank Conley of Columbia in the highly publicized court battle “Water vs. Ethanol” could potentially provide the legal foundation for future Missouri water-rights law. Although the recent decision in favor of Gulfstream Bioflex Energy’s plan to construct an ethanol plant has created a major setback to our quest for a modern water-rights law – which we believe should be based on the foundation and legal premise of “reasonably certain” – we are encouraged by the public feedback we are getting from several hundred people urging our group to move forward with an appeal.

The plaintiffs’ lawsuit, filed on behalf of Citizens for Ground Water Protection for a permanent injunction against the corn-based ethanol plant planned for a 252-acre tract along Highway 60 between Rogersville and Fordland, was defeated in a May 4 Circuit Court decision. At the heart of the judicial ruling was the statement that “plaintiffs have failed to establish and prove, with credible evidence, claims for nuisance, trespass, negligence per se, strict liability and absolute liability.” The basis for this ruling was outlined under the “conclusions of law” adopted by Judge Conley, stating, “the Court concludes that plaintiffs cannot meet the basic requirements to enjoin a prospective nuisance.” According to the judge, “under Missouri law, an action to enjoin an anticipated or prospective nuisance must make clear, and free from all substantial doubt, that the anticipated nuisance ‘certainly and inevitably’ will result.”

Judge Conley further wrote that “the plaintiffs’ burden in this case is not just to show there is a ‘reasonable likelihood,’ but that they will ‘certainly and inevitably’ be harmed by the operation of the ethanol plant.”

There should have been no doubt in the judge’s mind at the conclusion of the testimony of the defendants’ expert witness, Ray Hamilton, that neither his proposed “Plan A” nor “Plan B” would work as a viable “no-discharge” water treatment system in containing the treated effluent discharge of the plant on site, as stated. However, the judge must have felt that there was a “possibility” that the proposed wastewater treatment system might work.

Therefore, in order for the plaintiffs to meet the burden of proof required by this judge’s interpretation of the law, it will require that a) construction of the ethanol plant will need to be completed; b) individuals will need, for all practical purposes, to incur “actual damages” by nuisance and/or trespass as a direct result of the operation of the ethanol plant; and c) once that event has occurred, and it will occur, we would then be required to go back to the court system to establish our claim, and then litigate the complaint in order to get a favorable judgment.

How convoluted is that logic?

So, where in our Missouri legal system is there a law that holds big business and politicians accountable for their social responsibility to protect the sustainability of the environment for our children, our grandchildren and future generations? Should we, as responsible citizens, stand silent in the face of this recent court decision? Or should we draw on the strong will and determination of our forefathers by demonstrating our willingness to stand up and fight the legal, political and legislative system that provides protection for big business to inflict irreparable damage to land and water resources, in order to get new water-rights law established in Missouri?

The impact of this issue extends far beyond a few neighbors. If this project is allowed to move forward, the environmental impact on both the quality and quantity of our groundwater resources will be felt throughout Webster, Greene and Christian counties.

—Gary Rogers,

Citizens for Ground Water Protection,

Fordland[[In-content Ad]]