Ridenbaugh Press/Water Rights

Michigan House Bill 5319 is short – just two pages – and its essence comes down to a sentence or so: “The waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”

Short and simple it may be, but not uncontroversial. The measure, which has passed the House, has drawn concern that some existing water users may be impacted. The Oakland County committee on government has passed a measure declaring, “HB 5319 is attempting to quietly strip away these property rights without landowner compensation and poses a dangerous threat to the economic prosperity of the State of Michigan and Oakland County.”

Backers of the bill warn that while the new Great Lakes Compact does provide some restrictions on expert of water from the region, it allows for some export in bottles.

Russ Harding, senior environmental analyst and director of the Property Rights Network at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, said in an article for the Detroit Free Press, “Placing groundwater in government ownership is not needed to protect our natural resources. Worse, it is bad public policy. Michigan’s water is an economic asset and is the envy of most states. Wise use of water should be encouraged to serve as a catalyst for providing much-needed jobs in the state, rather than turning that asset into a liability by subjecting job providers to a new, costly and time-consuming permit process. Water rights are an important component of property rights. Michigan voters recognized the importance of protecting against physical taking of property by passing Proposition 4 in 2006, making it more difficult for government to take property by eminent domain. Protecting private water rights from regulatory taking is no less important.”

A group of seven west New York cities, villages and towns said in mid-February they are just about ready to press for a joint municipal water supply through regional transmission lines from Lake Erie.

The seven communities will seek to join the Chadwick Bay Regional Development Corporation, and seek a $400,000 development grant.

The seven are Dunkirk (city and town, which are separate entities), Portland, Sheridan, Pomfret, Fredonia, and Brockton. The lead applicant was designated as the city of Dunkirk.

[see the Dunkirk (NY) Observer, February 16]

Dan Scripps

A state legislative proposal to declare Michigan’s ground water as being in owned in the public trust – a formulation similar to that of most western but only some eastern states – has begun developing heated opposition.

House Bill 5319, a one-page measure, adds a provision to state water law saying that “the waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”

Prime sponsor Representative Dan Scripps was quoted as saying that “Those [existing state provisions] are important in defining how much water you can use. The top limit on where you can get a permit from the state for water withdraws is 100,000 gallons if it impacts a trout stream, two million if it impacts the Great Lakes Basin. And that’s great. It’s important that we have that in place. What this does is say even with those limits if water is being used in a way that has a local impact, an individual trout stream would run dry or somebody’s well would no longer produce, or basin wide impact, even if it falls within the limits, we have the ability to stand up and say that’s not an appropriate use.”

And he said that “We’re surrounded by 20 percent of the world’s fresh water, and with that blessing comes an incredible responsibility. We must act as responsible stewards of our waters and preserve our lakes, rivers and beaches for future generations. Our waters are not only part of our heritage, but a key part of creating and protecting thousands of jobs across Northwest Michigan and a cornerstone of Michigan’s tourism industry.”

Opposition has also developed. Russ Harding is senior environmental analyst and director of the Property Rights Network at the Mackinac Center for Public Policy, offered this critique of the proposal:

When politicians talk about placing natural resources in public trust, landowners should be worried. The right to own and use private property is a bedrock principle of a free people. These rights are threatened by House Bill 5319, which would place groundwater in public trust and require landowners to secure a permit from the state of Michigan in order to use that water. The bill would essentially overturn more than a century of Michigan water law.

Property rights are often compared to a bundle of sticks. Philosopher John Locke was an early proponent of this idea, which holds that the sticks that make up the bundle are a compilation of the various rights that come with owning private property, including the rights to live on or bequeath it. Water rights are a significant “stick” in that bundle. With the introduction of House Bill 5319, Michigan property owners are threatened by government action that would steal a stick from that bundle and give it to the state. Continue Reading »

David Dempsey, a writer for the environmental group Conservation Minnesota, contends in a June 28 op-ed for the Minneapolis Tribune that in spite of the new Great Lakes compact, water in bulk could be privatized and sold from the lakes.

“The compact originated from a Canadian firm’s proposal in 1998 to export 50 tankers per year of Lake Superior water to Asia,” he writes. “The Great Lakes states and many citizens worked to prevent the commercialization of the lakes. But they didn’t succeed. While it is now illegal to export 50 tankers per year of Lake Superior water without the permission of the governors of every Great Lakes state, it is perfectly legal to export 50 tankers per year of bottles or other containers holding Lake Superior water with no interstate approval.”

He points out that Texas businessman T. Boone Pickens has made a large-scale market in Texas of water rights, some of which he has sold to local communities.

Dempsey’s prescription:

Correct the oversight in Minnesota’s and other Great Lakes states’ laws that fails to reaffirm water as a public resource that cannot be privately owned, any more than the air can.

Enact a congressional resolution expressing the policy of the U.S. House, Senate and president that the Great Lakes Compact cannot be interpreted or used by any party to claim private water ownership.

A new report in Science magazine, primarily focused on the use of water bodies as indicators of climate change, also suggests that even the vast amount of water in the Great Lakes would not be enough to supply North America if water usage continues running too high.

An article in the Montreal Gazette quoted University of Alberta biologist David Schindler as saying, “I think we have to stop considering the Great Lakes as the thing that’s going to irrigate the Red River Valley and supply water to the dry American southwest . . . It’s like our big bank account with a low interest rate. In the case of Lake Superior, that water is only renewed at a rate of about two-tenths of a per cent a year on average. That’s the sustainable water we have to work with, not the whole lake basin, if we want to continue to have a good lake for future generations.”

Schindler was one of three co-authors of the report.

Water users in Michigan will get some instruction and assistance through workshops scheduled for locations around the state, to be held in December and in January.

Locations will include Howard City, Clinton Township in Macomb County and West Olive, all places where groundwater withdrawals are relatively high.

A web site already has gone live, also to explain the new regime.
The outreach effort comes in the wake of new groundwater management rules. 2006 legislation does allow for was withdrawals is there is no “adverse resource impact,” but no metrics were indicated for determining that impact.

Capital News Service: Michigan State University School of Journalism http://blog.mlive.com/cns/2008/11/sessions_will_shed_light_on_wa.html

In what may have been the major water-related ballot action in the nation on Tuesday, Ohio voters approved Issue 3, “to affirm certain property interests with respect to ground water and other water on or flowing through a property owner’s land so as to maintain the stability of Ohio’s economy.”

The measure, which adds to the state constitution, is the Ohio Water Compact Constitutional Amendment. The state legislature referred it to the ballot as a companion to the Great Lakes Water Compact, which the legislature approved in June 2008. The amendment is intended to protect landowners’ right to the “reasonable use” of water on or running under their property. The effective date is December 1.

One commenter noted that much of the amendment already is incorporated in state law and precedent, but “If passed, Issue 3 would guarantee in the state Constitution that a private property owner has a right to make reasonable use of the ground water that lies beneath the owner’s land and of the water in a lake or watercourse located on or flowing through the owner’s land. These rights would remain subordinate to the public welfare.”

From the Alliance for the Great Lakes:

President George Bush on October 3 signed the Great Lakes-St. Lawrence River Basin Water Resources Compact, endorsing sweeping protections for the Great Lakes that culminate a decade’s-worth of work by conservationists, government agencies, businesses, the public, as well as countless local, state and federal leaders.

The Alliance for the Great Lakes and the National Wildlife Federation — both engaged in the compact from the start — applauded the many efforts that made today’s historic signing possible.

“This is a great day for the Great Lakes,” said Alliance President Cameron Davis. “What started as just a ripple in 1998 when the region beat back a Great Lakes water grab has given rise to a cascade of support for these waters both in the region and across the country.”
“With President Bush’s signature, we’ve given notice that the Rust Belt is turning into the Blue Belt, where our freshwater defines our economic future,” said Andy Buchsbaum, regional executive director of the Great Lakes office of the National Wildlife Federation. “In this time of financial crisis, we are blessed to have the Great Lakes as assets that will remain the foundation of our region’s future.”

The eight-state water management pact protects the nation’s largest fresh surface water resource from depletion and diversions. Together with companion laws in the

Canadian provinces of Ontario and Quebec, the compact stresses conservation and establishes first-of-its-kind decision-making standards for Great Lakes water use.
“Protection of our Great Waters is not a partisan issue, it’s an America issue,” said Marc Smith, Great Lakes state policy manager for the National Wildlife Federation. “This signing reflects the commitment to protecting one of America’s greatest natural resources—the Great Lakes—for our children and for generations to come.”

Before winning approval from the U.S. House of Representatives in September and the U.S. Senate in August, the compact was approved by the legislatures of the Great Lakes states: Minnesota, Wisconsin, Illinois, Michigan, Indiana, Ohio, New York and Pennsylvania.

The Great Lakes contain more than 90 percent of the fresh surface water in the United States, and 20 percent of the world’s supply. Seemingly abundant, less than 1 percent of the Great Lakes water is renewed each year, however, leaving the lakes vulnerable to depletion.

Work on the compact began 10 years ago when the Great Lakes governors convened a binational task force and advisory committee to respond to the threat of water diversions to Asia.

Advocates of the Great Lakes Compact – an agreement long sought around that region for purposes of water protection and management – have come close to a congressional approval that would seal the deal.

The agreement would set in place water conservation requirements, strict agreements between the states (and Canadian provinces) on managing the water, and a federal agreement that the massive supply of fresh water in the region would not be exported. The state of Michigan, the last signatory, approved its role in the deal earlier this year.

Debate on the compact started in the U.S. House on Monday and was expected to go on, intermittently, for a week or more. Senate approval was reached this summer, and the Bush Administration is not expected to oppose the bill.

The New York Times reported that “Though passage in the House is foreseen, support there is not unanimous. Some members say the pact is not strong enough to protect the lakes, which together account for 20 percent of the world’s fresh surface water. Among the dissenters is Representative Bart Stupak, Democrat of Michigan, who complained Monday about an exception that would allow bottled water to be shipped outside the basin, among other management issues.”

The Michigan state legislature on May 15, in approving the Great Lakes Regional Compact, moved to try to block diversion of water from the Great Lakes to outside the region.

Eight states are planned to be participants in the agreement.

Lawmakers remained at odds, however, on water diversions within the state – other than directly from the Great Lakes. Those could include waters from some in-stream streams, ponds and lakes as well as groundwater. Such legislation is prerequisite to the state’s participation in the larger compact.

Legislation would require water users to obtain permits after withdrawing more than a certain amount of water. A Senate proposal would set that limit at two million gallons per day, and a House proposal would set it at about half as much. The issue has pitted environmental and business groups against each other.

Ohio, Pennsylvania and Wisconsin still have not reached final action on the agreement. Four other states, and the Canadian provinces of Ontario and Quebec, have done so.
See Detroit (MI) Free Press, May 15; article by T