Clean Water Act Suit - The Watershed Center Grand Traverse Bay

clean water act & Michigan environmental
protection act suit

History of Pollution

Burnette Foods, Inc., operates a fruit processing facility located in Elk Rapids, Michigan. Burnette Foods discharges its fruit processing wastewater to the ground through spray irrigation fields under the requirements of a groundwater permit issued by the Michigan Department of Environment, Great Lakes, and Energy (EGLE). For over a decade, Burnette Foods has routinely land-applied wastewater that exceeds their groundwater discharge permit requirements and is adversely impacting water quality in the groundwater, as well as nearby wetlands, Spencer Creek, and Elk Lake.

Information collected from Burnette’s self-reported data, EGLE data, and field observations all indicate that Burnette’s wastewater is periodically discharged to wetlands, Spencer Creek, and Elk Lake, causing impairment. Surface water impairments include but are not limited to:

unnaturally high biological oxygen demand in wetlands and Spencer Creek
low dissolved oxygen in Spencer Creek
elevated concentrations of total phosphorous in Spencer Creek
elevated levels of E. coli in Spencer Creek and Elk Lake
unnatural foam, odors, suspended solids, and colors in Spencer Creek
unnatural colors in Elk Lake

Between 2008 and 2021, several complaints were filed with EGLE raising concerns about observed conditions in the wetlands, Spencer Creek, and Elk Lake. Due to these complaints, EGLE performed inspections that confirmed the allegations in the complaints. EGLE documents demonstrate numerous permit violations, exceedances of water quality standards, and direct unpermitted discharges to surface waters. Any actions EGLE has taken to protect surface and groundwater and bring Burnette into compliance with state standards have been insufficient to effectively address the continuing discharges and violations.

This citizen suit is a result of over a decade of Burnette Foods routinely land-applying wastewater that exceeds their permit requirements and is adversely impacting water quality in the groundwater, wetlands, Spencer Creek, and Elk Lake.

If you are interested in staying informed as the suit progresses, please let us know.

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Time to Take Action

In November 2022, The Watershed Center Grand Traverse Bay, Grand Traverse Bay WATERKEEPER®, Elk-Skegemog Lakes Association, and Grand Traverse Band of Ottawa and Chippewa Indians submitted a Clean Water Act Notice of Intent to Sue/60-Day Notice Letter to Burnette Foods, EGLE, and the U.S. Environmental Protection Agency. Since Burnette had no plan to ensure its effluent complies with water quality standards, The Watershed Center Grand Traverse Bay, Grand Traverse Bay WATERKEEPER®, Elk-Skegemog Lakes Association, and Grand Traverse Band of Ottawa and Chippewa Indians filed suit against Burnette Foods to enforce the Clean Water Act and Michigan Environmental Protection Act in June 2023.

In response to the filed complaint, Burnette Foods filed a Motion to Dismiss in November 2023. In April 2024, U.S. District Court Judge Beckering filed an Opinion and Order denying the Motion to Dismiss and requiring Burnette Foods to respond to the complaint.

Since April 2024, TWC and our co-plaintiffs have been engaged in the discovery process by reviewing and compiling evidence, participating in depositions, and securing subject-matter experts in hydrology, wastewater, and wetlands. Discovery concluded in March 2025 and both sides filed motions for summary judgement.

As this suit progresses, The Watershed Center will continue to pursue a resolution that will identify and ensure timely implementation of solutions that fully protect and maintain water quality in the groundwater, wetlands, Spencer Creek, and Elk Lake.

Landmark Clean Water Victory

On November 12, 2025, Judge Beckering issued an Opinion and Order granting our motion for summary judgement on all Clean Water Act and Michigan Environmental Protection Act claims while denying Burnette Foods’ motion. This means the court agreed with our key findings that Burnette Foods discharges pollutants without a proper permit and they have polluted and impaired groundwater beneath their spray fields and surface waters connected to wetlands, Spencer Creek, and Elk Lake.

This decision is precedent-setting, one of the first of its kind since the Sackett v. EPA decision redefined “waters of the United States” in 2023. The court recognized what we’ve always known – groundwater, wetlands, creeks, and lakes are all connected and protecting one means protecting them all. This ruling not only protects these waters, it sets a powerful precedent for others that are working to protect water in their communities across Michigan and beyond.

While this judgement affirms Burnette Foods’ violations, it is just the beginning of finding solutions to ensure Burnette Foods finally stops discharging unlawfully and commits to implementing solutions that fully protect and maintain water quality in the groundwater, wetlands, Spencer Creek, and Elk Lake.