Groundwater regulations guard against overuse, misuse
By Jim Olson
Detroit Free Press
May 11, 2004
Water moves in a cycle, falling from the sky, percolating
into soil, flowing to river or lake, transpiring through
leaf and evaporating back to sky. Drawing on the reality
that it is movable by its nature, as a basic legal principle
water is not owned by anyone.
We do have the right to use it, but the right must be
exercised reasonably. It is in effect a commons to be
shared. As with any common or public resource -- such
as air, parkland or cultural heritage -- its shared use
requires limits, the most fundamental of which is to ensure
the public resource is not diminished or destroyed.
But what happens if a person or corporation claims exclusive
ownership of water, and diverts and sells it elsewhere?
This question bores into the heart of what limits are
and should be on the withdrawal of water from Michigan's
watersheds and the Great Lakes. The answers lie in the
recent court ruling against the Nestle Waters bottling
operation and in Gov. Jennifer Granholm's newly proposed
regulation of groundwater extraction. Together, they can
put Michigan on the right track to safeguard its water.
The Nestle case focused on the company's Mecosta County
well field, built to pump, divert and sell 210 million
gallons of water a year from springs and groundwater that
replenish a stream and lake system.
Judge Lawrence Root ruled in favor of Michigan Citizens
for Water Conservation, which brought the suit. He said
Nestle's extraction of water for private diversion and
sale out of the watershed is illegal under Michigan property
law because it diminishes the flow and level of the stream
Root based his ruling on widely recognized property and
water law principles. In particular, Michigan Justice
Thomas Cooley, writing for the Michigan Supreme Court
in 1874, established the principle for sharing water among
owners of property on lakes or streams. Cooley once wrote:
"For water is a movable, wandering thing, and must
of necessity continue common by the law of nature."
While a landowner has a right to reasonable use of water,
he said, no one could divert and diminish water from a
lake or stream for sale out of a watershed.
Root, in turn, found the groundwater and surface water
interacted as a single water course, and Nestle could
not do indirectly what those who live on a lake or stream
cannot do directly.
Root's ruling actually protects water use by Michigan
farms, manufacturing, ski areas, golf courses and tourism.
He meticulously distinguished industrial and other water
users, such as municipal water plants and farmers, from
those who without lawful authority divert and sell water
out of a watershed. Why would Michigan's home-grown, water-dependent
industries want a shift in property rights to open the
floodgates for selling the water elsewhere in competition
with their own use? This would be economic suicide.
The ruling does not necessarily imperil jobs, either.
The job loss threatened by shutdown of the wells was Nestle's
own doing. Root had, early on, warned Nestle that any
construction would be at its own business risk, which
should include assuming responsibility for employees.
Besides, the few jobs dependent on the illegal taking
of water pale when compared to the hundreds of thousands
of jobs, if not millions, that depend on the security
and use of water here.
Gov. Jennifer Granholm's proposed Michigan Water Legacy
Act, to regulate groundwater withdrawals, does not address
the need for prohibition of the private diversion and
sale of Michigan's water consistent with the principles
of Root's decision. But with some careful changes, it
is at least a toe in the water.
If Michigan does not begin to take careful steps to base
its limits on long-standing precedents concerning our
property law and water commons, then Michigan's future
will be seriously threatened by world trade agreements
such as the North American Free Trade Agreement and the
World Trade Organization.
Global corporations have already been filing claims for
huge damage awards, arguing that the trade agreements
prohibit state and local interference with the trade of
their commodities. But Michigan water is not a "commodity,"
and Nestle and others do not have a property right to
market our water, in bottles or other containers, without
our say-so or where it diminishes the water reasonably
used here by others.
It would be a grave mistake not to set strong limits
now. If we do not, we may not be able to correct the mistake
in the future.
Citizens and businesses of Michigan must demand that
the governor and Legislature safeguard our property, water
and commons. Water is our soul, and it's not for sale.