News Story

This Land Is Your Land - But Under These Bills Not The Water

'Public trust doctrine' and 'collective' ownership mean government permission required

A group of 16 Democratic state lawmakers wants to overhaul Michigan water law, which is grounded on a centuries-old system of riparian property rights. They would replace it with a doctrine that all water — both surface and underground — is “held in the public trust ... (and) belong(s) to the people of the state collectively.”

A pair of bills the 16 introduced in December has the potential to replace traditional standards, which allow property owners to exercise “reasonable” and “sustainable” use of water under or abutting their land. Instead, government would decide which uses are in the public interest, according to critics of the proposals.

A primary target of the legislation is the bottled water industry, especially Nestle Waters North America’s operation in northern lower Michigan. Lawmakers said it takes advantage of a loophole in current law to export water outside the Great Lakes basin.

“Our groundwater and the Great Lakes are all one hydrological body,” said Rep. Rachel Hood, D-Grand Rapids, when the anti-Nestle bill was introduced. “We should not be allowing corporations to profit off of permanently removing massive quantities of water that belongs to all of us.”

But Scott Slater, a California attorney specializing in water rights, including internationally, said courts have long recognized that water rights are “a form of property.”

In fact, the U.S. Supreme Court “has called water rights among the most important and valuable property rights on earth,” he said.

Nullifying those rights could be viewed by the courts as a taking, Slater said, as when private real estate is appropriated by the government for a highway corridor, thus requiring that the property owner be compensated.

Slater, who in the past represented Nestle but is no longer associated with the company, also said that targeting commercially bottled water ignores hundreds of other, more significant, commercial uses of water.

In a statement, Nestle said the proposal “unjustly targets the bottled water industry.”

The 40 bottled water companies in Michigan “account for less than .01% of water used in the state,” it said. “Water is a renewable resource when managed responsibly, and sustainable water management is at the core of Nestle Waters’ operations.”

The latest proposals to rewrite Michigan water regulations are likely to face substantial resistance from other commercial users of water as well.

A spokesman for the Michigan Farm Bureau told Bridge Magazine the legislation was “a wolf in sheep’s clothing.”

Republican majorities in the Legislature have rebuffed similar calls in the past, including one from former Democratic Gov. Jennifer Granholm, to subsume water rights into the “public trust.”

Slater said it is hard to know what the latest effort actually means in practical terms.

The legislation calls for state regulatory agencies to “ascertain whether (current) rules sufficiently ensure the protection of the public trust,” and, if not, to propose new ones.

But Slater said the law already offers protections to safeguard clean and sustainable water supplies and provide for navigation and fisheries.

“The public trust can exist alongside private property rights,” he said. It is possible that the new law would not have any significant legal consequences, Slater sad.

Declaring that every drop of water in Michigan belongs to the state, could have far-reaching implications, Slater said. Regulators and environmentalists may “want to step in and say, ‘We don’t like what you’re going to use the water for and you have to stop doing that.’” Such moves would face challenges on constitutional grounds, he added.

In 2018 Michigan Capitol Confidential reported that Michigan’s golf courses use about as much water in a week as Nestle would use if it operated nonstop every day of the year.

Under the riparian water rights doctrine that prevails in the eastern half of the nation but not in the arid west, property owners have a right to the reasonable use of water under their land. They also have a responsibility to compensate nearby property owners if their use impairs a neighbor’s access. Most of Michigan generally has abundant groundwater, but in a few areas this is not so, and there have been conflicts. A 2003 law created a specific process for resolving such conflicts.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.