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.”

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 »

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

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

A coalition of environmental and conservation groups is
arguing that the best chance Michigan has of hanging onto
the use of that water for its residents and to prevent withdrawals from the Great Lakes basin is a package of bills
currently in the state House. The coalition staged press
conferences at five locations throughout the state in April to
push for adoption of the House legislation.
Hugh McDiarmid Jr., spokesman for the Michigan
Environmental Council in Lansing, said there are
competing versions of bills regulating water withdrawals
within Michigan in the House and the Senate. The bills
would be the enabling legislation that would place Michigan
in compliance with the Great Lakes Compact signed by all
eight Great Lakes governors.
The compact would work in accord with an international
agreement between the United States and the Canada
banning diversions-with very limited exceptions-of Great
Lakes water to areas outside of the Great Lakes basin.
The compact has been approved by legislatures in New
York, Illinois, Indiana and Minnesota. It also has been
approved by the Ontario provincial parliament and is
making progress in the Quebec provincial parliament.
After the compact is approved by the states and
provinces, it must be approved by the U.S. Congress and the
Canadian federal parliament.
Approval of the compact, McDiarmid said, is in both the
House and Senate packages and has not been controversial.
Michigan’s current ability to protect against diversions of
water outside the Great Lakes basin, he said, rests with two
to three sentences in the Water Resources Development Act
of 1986 that prohibit diversions unless approved by all eight
Great Lakes governors.
Michigan Gov. John Engler in 1992 used the act to veto a
request by Lowell, Indiana, to divert 3.2 million gallons per
day from Lake Michigan for public drinking water supplies.
McDiarmid said there have been doubts as to the
constitutionality of WRDA and Michigan needs its own
package of strong water protection regulations to prevent
withdrawals.
That’s where the bills before the state House and the
Senate come in, said Christy McGillivray, senior organizer
for Clean Water Action in Clinton Township.
Until 2006, the state effectively had no laws regulating
withdrawals of surface and groundwater, she said.
She called legislation passed in 2006 a stepping stone
that contained several loopholes.
The most important loophole, she said, allows water to be
exported from the state in containers less than 5.7 gallons.
That means water could be exported by the truckload, she
said, as long as it was in individual containers less than 5.7
gallons.

The House legislation would require permits for
withdrawals of 100,000 gallons per day for bottled water,
according to information from Clean Water Action.
The House version, she said, also defines that “water is a
public resource and not a private commodity,” she said.
The House legislation has a trigger for a water
withdrawal permit of 1 million gallons per day from inland
waters; the Senate threshold is 2 million gallons,
McDiarmid said.
Environmentalists and conservationists believe the
House bill provides more public oversight of potential
withdrawals than the Senate version.
The House bills, said Aaron Rubel, president of Clinton
Valley Trout Unlimited, allow large-volume withdrawals up
to a point where they are predicted to have no harm to cold-
water fisheries-allowing for 14% to 22% of summer low-flows
to be withdrawn, depending on stream size.
The Senate bills, he said, allow an average of 25% of
summer low-flow to be withdrawn from streams statewide,
he said.
Contact Bob Gross at (810) 989-6257.

A band of Ottawa and Chippewa Indians told Michigan state lawmakers in March that proposals to limit water withdrawals from state streams might run afoul of their fishing rights, since they could limit the numbers of fish in areas where the tribes have access to them.
A number of other tribes around Michigan were thought likely to join the Traverse Band (located near Traverse City) in their challenge.
The legislation is aimed at more closely guarding the state’s water supply, a matter of some sensitivity since Great Lakes water levels have been on the decline. It only larges large-scale withdrawals of more than 200,000 gallons per day, which mainly would be used for agricultural and industrial uses.
An Associated Press report on the dispute noted that “Last fall, the Grand Traverse Band and four other tribes signed an agreement with the state recognizing their members’ right under an 1836 treaty to hunt and fish on public lands in parts of western and northern Michigan. Under the deal, the tribes agreed to hunt and fish in those areas only for subsistence purposes – not for profit. But the Grand Traverse Band said allowing water withdrawals that reduce fish numbers would be a ‘fundamental breach’ of the agreement, which settled a 4-year-old lawsuit.”
[See Associated Press article, March 25, by John Flesher.]

New Mexico governor and Democratic presidential candidate Bill Richardson stirred up a hornet’s nest last month when he called for a national summit on water to address needs in the parched West including looking at a way for water-rich northern-tier states to help with shortages in the Southwest. He also said he would elevate the Bureau of Reclamation to a Cabinet-level post. The comments were made during an interview with the Las Vegas Sun newspaper.
Richardson said he wanted to see more communication between the western and eastern states, that he’d like to see a national water policy, and the comment that triggered quick, sharp rebuttals from some Great Lakes states: “States like Wisconsin are awash in water.” His comment was blasted by environmental groups as well as Michigan Governor Jennifer Granholm who, when asked about the plan said, “Hell No. That’s my response.”
Richardson’s comments prompted a firestorm of official, environmental and editorial comments.
While Richardson, and other Westerners may see the East, especially the Great Lakes as having an abundance of water (and certainly by comparison to the arid West, they appear to), people in those states are currently struggling with concerns over diminishing levels in several of the Great Lakes.
The message from Richardson sounded alarm bells in the Midwest, where Lake Superior has hit a record low for this time of year, and Lakes Michigan and Huron are flirting with their own record lows. Meanwhile, a compact among the eight Great Lakes states to block large-scale diversions remains stalled in some state legislatures, including Wisconsin’s. A big reason for the snag is that some are worried its provisions are too restrictive and could throttle development within the Great Lakes. Compact advocates are hopeful Richardson’s pitch will spur lawmakers into action. Environmental groups in the Great Lakes responded sharply: “It’s ridiculous to say that,” said Hugh McDiarmid, spokesman for the Michigan Environmental Council. “Until the compact is passed, our water protections are hanging on by a thread.”
This isn’t the first time presidential candidates have flirted with the idea of using the Great Lakes for other water needs. In 2004, Democratic presidential candidate John Kerry told the Free Press that Great Lakes water diversion issues required a “delicate balancing act” to provide for “national needs.” A day later, his spokesman took it all back, saying Kerry did not think water should be diverted from the Great Lakes.
After several days of stinging criticism in Michigan and Wisconsin, Richardson followed Kerry’s example and backed away from the idea: “Richardson in no way proposes federal transfers of water from one region of the nation to the other,” said a statement by his press secretary Tom Reynolds. “Richardson believes firmly in keeping water in its basin of origin and of the rights of states to oversee water distribution.”

Citing potential harm to the region’s economy and environment from low water levels, the Great Lakes Commission is urging the International Joint Commission to expedite its investigation into changes in the St. Clair River that may be causing lakes Huron and Michigan to drain more rapidly.
The resolution, adopted Oct. 2 at the 2007 Annual Meeting of the Great Lakes Commission, urges the IJC to produce an interim report on physical changes in the river, which drains Lake Huron, by the end of next year. It also calls for an investigation of potential remedies in the event it is determined that erosion of the river bed is causing a decline in lake levels.
“The continuing decline in water levels across our region has serious economic consequences for our regional economy, including maritime transportation, recreational boating, municipal water supply and electrical power generation, along with potential environmental harms” said Michigan Lt. Gov. John Cherry, chair of the Great Lakes Commission. “That’s why we think it’s critical for the IJC to expedite its investigation of changes in the St. Clair River and potential remedial measures, and provide an initial report to the U.S. and Canada by next year.”
Investigations by independent researchers have suggested that erosion in the St. Clair River may be leading to permanent declines in the levels of lakes Huron and Michigan, by increasing outflows. The IJC is studying changes to the Lake Huron outlet as part of its International Upper Great Lakes Study now underway, with a report due out in 2010.
The St. Clair River resolution also urges the U.S. and Canadian governments to provide funding to fully investigate the causes of water declines on the Great Lakes. The Upper Great Lakes Study is an IJC project investigating factors affecting water levels and flows on lakes Superior, Michigan, Huron and Erie, including physical processes affecting outflows through the St. Clair River.
The full text of both the water levels resolution and recreational harbor maintenance resolutions is available at www.glc.org/about/resolutions.

Contact: Tim Eder, teder@glc.org.?Office: 734/971.9135?Fax: 734/971.9150 October 9