What Legal Court Precedents and Legislation Regulates the Pumping and Sale of Water in Michigan?

Water is Public Property

Water has been considered public for almost two thousand years. Because water is a moveable thing—the rivers, lakes, and seas—it is of necessity a commons. While most courts view water in its natural state incapable of ownership in the property sense, it is public in the sense that it is held by each state in their sovereign capacity for the benefit and essential needs of the people. Some water because of its special character, like the surface water in all of our navigable lakes and streams, is protected by what is known as the “Public Trust Doctrine. The public trust doctrine is a critically important common law body of principles that form the backstop to the regulation and responsibility of a state to protect its freshwater and related natural resources and protected public trust uses by citizens—navigation, fishing, boating, bathing or sanitation, drinking water, swimming and other recreational enjoyment. The state government has a solemn mandatory duty to protect these public rights and the water they depend on in the management and regulation of water quality and quantity, such as water withdrawals and diversions, including bottled water. They also have a responsibility to assure that these public freshwaters are not abused by private entities that impair or subordinate these public rights and uses. While all state agencies, the legislature, and courts have a duty under public trust law, in Michigan these duties are carried out by a dedicated body within the state government known as the Department of the Environment, Great Lakes, and Energy (EGLE).
Groundwater Reasonable Use Doctrine

You might have noticed that I said all surface waters, and not just all waters are covered by the public trust doctrine. While the trend is to protect groundwater under the public trust doctrine, most courts and legislatures like Michigan have not considered the question. Although Michigan law recognizes that groundwater and surface water are interconnected, groundwater is still treated differently in practice. In Michigan, groundwater is protected by the common law reasonable use and correlative rights doctrines. As noted above, no one owns the groundwater under their land. But ownership of land includes the right of the owner to withdraw and use the water to benefit its land as long as the use does not cause unreasonable interference or damage to another owner’s reasonable use. The “reasonable use” doctrine becomes more complicated when groundwater is connected to publicly owned surface waters because pumping and contaminating groundwater can drain and contaminate surface water. Under the correlative rights doctrine, if a landowner withdraws large volumes of water and diverts to distant lands, the diversion or distant use is unlawful if it measurably diminishes the flow and level of a stream, lake, or wetland.

The connection between surface and groundwater makes the impact of large-scale groundwater extractions by bottled water corporations like Blue Triton (formerly Nestlé) problematic in the context of reasonable use and correlative rights doctrine. In 2005, the Michigan Court of Appeals ruled that the former owner’s extraction of groundwater for bottled water near the headwaters of a stream in Mecosta County was an unreasonable use, resulting in a reduction of pumping by fifty to twenty-five percent depending on the season of the year.
Water Regulation in Great Lakes Region

The state of Michigan is one of eight states and two provinces in the Great Lakes region. In an effort to increase cooperation on protecting the Great Lakes, all eight US states that border the Great Lakes (MN, WI, IL, IN, MI, OH, PA, and NY), along with the Canadian provinces of Quebec and Ontario, agreed in 2005 with the goal of promoting responsible use and sustainable management of the shared water resources. This agreement became law in 2008 with the Great Lakes—St. Lawrence River Basin Water Resources Compact. One of the most important parts of this legislation is a ban on new diversions of water outside of the Great Lakes Basin, with two notable exceptions: the ban did not apply to existing diversions or to water diverted in containers smaller than 5.7 gallons. Since Nestlé had already begun bottling and exporting water from Michigan in 2002, this law didn’t impact their existing operations in Mecosta County. Furthermore, since Blue Triton’s diversion of groundwater at White Pine Springs is shipped in containers smaller than 5.7 gallons, the Compact diversion ban does not apply.

Legal Precedent

Although not directly written into law, legal precedents, which are previous court rulings that have broader implications, can serve as an important tool for determining the legality of a given water use or diversion, including for the sale of bottled water. There are two significant cases precedents that apply to water withdrawals and diversions in Michigan. The first of these cases is the leading Michigan Supreme Court decision that dates back to 1917 in Schenck vs. Ann Arbor. At the time, the city of Ann Arbor pumped water from a well in farmland just outside city limits, eventually diverting almost 4 million gallons daily to supply the municipal water system and selling any excess water. A neighboring farmer, Gustave Schenk, noticed that the water level in his well dropped considerably as the city of Ann Arbor increased its use of the well and sued the city. The court ruled in Schenck’s favor, ordering the City of Ann Arbor to dig him a deeper well that was below the drop in groundwater level from pumping because the pumping and diversion had lowered water levels of Schenk and his neighbors. Schenck vs. Ann Arbor reinforced the reasonable use and correlative rights doctrine, because the court ruled that a water diversion away from the land for use or sale elsewhere was unlawful or unreasonable if it measurably diminished the flow or level of a stream or lake.

The other case is Michigan Citizens for Water Conservation v Nestle, the 2005 case mentioned above, that resulted in a court ordered reduction in pumping, because the pumping had significantly diminished flows and levels and caused substantial or unreasonable harm to the downstream landowners and the public’s use of the stream. While the court ignored the more stringent principles against diversion of water for sale in Schenk, it nonetheless affirmed the injunction issued by the trial court and remanded the case for the lower court to establish a level that assured adequate water in the stream for the downstream landowners and the public.

The Schenk and Michigan Citizens for Water Conservation cases, if followed, provide for significant basis to limit groundwater use and diversions and protect Michigan’s freshwater and related aquatic resources, especially water diversions from private groundwater wells for bottled water sales in and out of Michigan. The principles of these cases were even listed as standards that must be met before large-volume water wells for bottled water can be permitted under Michigan’s Groundwater Withdrawal Act of 2008 and the amendments to the Safe Drinking Water Act in 2006 and 2008.

These precedents offer sound principles that casts doubt and impose limitations on the ability of Blue Triton and others to use Michigan’s freshwater when it is shown, as evidenced by competent monitoring data and the direct observations during pumping by local residents, that the pumping and diversion has dropped or will drop the flow or levels of the water in neighboring wells and Michigan’s lakes and streams.