Commercial Use of Ground Water

Commercial Use of Michigan Groundwater

Appropriately named the "Great Lakes State," Michigan is the only state whose borders lie completely within the world's largest system of fresh surface water, the Great Lakes basin, which constitutes 18% of the world's water supply.(4)

Traditionally, Michigan has relied primarily on "riparian" rights analyses derived from English common law to regulate the commercial use of its largest natural resource. Since riparian concepts focus primarily on the relative rights of competing users of surface waters, there has, until very recently, been comparatively little regulation of the underground springs or aquifer system which feeds the surface water system, or of the rights of the state to control removal of water resources for use or sale elsewhere.

On November 25, 2003, Mecosta County Circuit Court Judge Lawrence Root issued a lengthy opinion that finally addressed the problem and defined many of the issues under the laws of Michigan. The dispute arose in 2001, after Nestle, the world's largest food company, obtained drilling rights from the Michigan Department of Environmental Quality (DEQ) on behalf of Perrier Group of America, one of its subsidiary companies, to remove 210 million gallons of fresh groundwater per year from Sanctuary Springs in Central Michigan, for bottling and sale throughout Nestle's global commercial market.(1)

Legal Issues:

The range of concern over and regulation of the natural resource of water spans a wide spectrum among the states bordering on the Great Lakes. While Minnesota requires a permit to draw more than 10,000 gallons per day from Lake

Superior, and includes "groundwater" in its definitions, Indiana allows unlimited use or withdrawal) of water from Lake Michigan. (1)

Michigan law strictly regulates pollution issues and environmental effects caused by commercial water use, but addressed removal of water resources only indirectly. Furthermore, because the intimate workings of the underground aquifers and their relationship to surface waters was not understood at the time Michigan water use laws were drafted, they fail to address groundwater removal, the subject of the dispute between Michigan Citizens for Water Conservation and Nestle/Perrier Group.

In granting the drilling rights, Michigan officials relied exclusively on issues of "reasonable use" as that concept had been traditionally applied in state courts and at English common law in deciding the relative rights of land owners (or users) in pari materia, or occupying similar relationships to the resource in question. In the absence of case law precedent on the specific issue of removal of groundwater resources, Judge Root relied on dicta in four earlier cases (mainly) concerning only riparian (surface water) rights and liabilities: Dumont v. Kellog (1874), Schenk v. Ann

Arbor (1916), Hoover v. Crane (1960), and Maerz v. U.S. Steel Corp. (1982).(2)

Ultimately, Judge Root ruled that the Michigan DEQ had violated public trust doctrine in failing to protect the public's interest against private diminishment of valuable state resources by granting commercial use, or "diversion" of Michigan groundwater for private use that was devoid of benefit to the residents of Michigan.

Similarly, Judge Root characterized the Michigan DEQ decision to grant drilling rights as violative of the Michigan Environmental Protection Act (MEPA), which applies in a broad sense, giving rights to the Attorney General (and any other

Michigan resident) to protect the state's natural resources from "pollution, impairment or destruction."(3) Similarly, the judge criticized the Michigan DEQ for failing to invoke protections granted under the Inland Lakes And Streams Act (ISLA), the Wetland Protection Act (WPA), and the Great Lakes Preservation Act (GLPA).

Recommendations:

Significant reform to the laws regulating natural resources in Michigan is necessary to protect the public interests against private diversion for commercial use that is without benefit or compensation to the general public. Michigan's Natural