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LOCAL COMMENT: 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 and lakes.

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.

 

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