Project ID: 2006MI72B
Title: Exploring the Legal Landscape of Michigan's Groundwater
Project Type: Research
Start Date: 03/01/2006
End Date: 02/28/2007
Congressional District: 8th
Focus Categories: Law, Institutions, and Policy; Water Use; Management and Planning
Keywords: Water Use, Groundwater Regulations, Riparian Rights, Legal Landscape, Water Law, Water Permits
Principal Investigator: Kaplowitz, Michael D.
Federal Funds: $10,000
Non-Federal Matching Funds: $21,256
Abstract: In Michigan, the public and policymakers are increasing concerned about water resources, especially groundwater withdrawals. Increasing demand from industry, agriculture and growing residential populations result in more frequent water use conflicts (Kettren et al. 2004). Michigan has also seen an increase in proposed legislation and litigation pertaining to water rights, especially groundwater.
Historically, Eastern states like Michigan have followed the riparian and reasonable use doctrines (Cech, 2003). The Doctrine of Riparian Rights assigns rights to landowners adjacent to a water body and places the responsibility on the upstream users to hold harmless downstream users. With regard to ground water, the riparian rights doctrine is called the overlying rights doctrine so that groundwater belongs to the owner of the overlying surface. Under Michigan common law, an individual is not supposed to utilize his or her riparian rights in such a fashion so as to unreasonably interfere with or burden the rights of other riparian property owners. Unfortunately, what constitutes ?unreasonable interference? with other riparian property rights is not based on any specific numerical formula, but rather must be tested on a case-by-case basis, often in the courts.
Efforts to legislate or regulate water use in Michigan have been problematic. For example, days after Michigan Governor Jennifer Granholm mentioned possible regulation to promote water conservation state business leaders and others attacked such measures to safeguard Great Lake water as being anti-business and anti-competitive (Guy 2005). Another example of the unresolved water conflicts in Michigan concerning the pumping of groundwater for bottled water. Recently, the Michigan Court of Appeals decided to over rule a lower court decision and allow Nestle Waters North America to pump water at its Ice Mountain facility in the Muskegon watershed while sending the case back to the lower court so that a balancing test may be applied (Michigan Citizens for Water Conservation v. Nestle Waters North America. Michigan Court of Appeals. No. 254202. November 29, 2005).
Recently, the Michigan legislature has been entertaining various possible pieces of legislation concerning regulating water use. On October 26, 2005 there were eight proposed pieces of water legislation in the State House of Representatives while on October 27, 2005 there were three bills introduced in the Michigan Senate. According to one author, the package offered in the State House is fairly comprehensive, but unduly complicated and in some instances compromises riparian and public trust common law standards. While the package offered in the State Senate is narrow in its application and protects only trout streams from adverse resource impacts and ignores riparian standards, public trust standards, and diversions or sale of water (Olson 2005). Of course, others believe that attempts to increase state regulation of groundwater use would "upend longstanding water rights and further weaken Michigan's economy" (Harding 2005).
The proposed research will undertake a comprehensive review and analysis of the legal bases for groundwater regulation and legislation in Michigan. The analysis and resulting research report will provide decisionmakers with a timely, objective, and complete analysis of the legal landscape of Michigan's groundwater.
Progress/Completion Report, PDF