Water Policy in Michigan balances human and ecological needs

Michigan applies property law and regulation to balance water uses by humans and natural systems and implement the Great Lakes-St. Lawrence River Basin Water Resources Compact.

With 20 percent of the world’s fresh water, the Great Lakes region is unquestionably water rich. Not surprisingly, Great Lakes water has been eyed hungrily by more arid regions of the U.S. and other parts of the world. To protect Great Lakes water from diversion outside the basin, the eight Great Lakes states and the U.S. Congress adopted the Great Lakes-St. Lawrence River Basin Water Resources Compact.

However, along with the protections afforded by the Great Lakes Compact come considerable responsibilities. The interstate commerce clause in the U.S. Constitution precludes an outright ban on diversions of Great Lakes water. States cannot simply block the transfer of water across state borders in order to provide economic advantage to their residents. However, states can institute restrictions on how water is treated if in-state and out-of-state uses of the water are treated equally.

In other words, if Michigan and other Great Lakes states argue that diversions of water out of the Great Lakes should be prevented on the grounds that the Lakes and the ecosystems they support would be harmed, then the states must demonstrate that their use of Great Lakes water harms neither the lakes nor the larger water-dependent ecosystems. To implement the Great Lakes Compact, Michigan passed a series of laws in 2008 that changed how water withdrawals are managed in the state.

Michigan’s 2008 adoption of the compact and the implementation of laws also reflected more immediate local water concerns. From its location in the heart of the basin, Michigan looks like a state with no water worries. Yet, Michigan is no stranger to conflicts arising from water scarcity.

Water scarcity is a function of both how much water is available and how much is desired for all of the ways water is used. In Michigan, accessible and high-quality ground water is not distributed evenly across the state. Weather, ground water recharge variations and patterns of human use combine to reduce the flow of some of Michigan’s streams during the drier months of the year, so that shortages sometimes occur. 

Severe reductions in stream flow can potentially harm water-dependent ecosystems and limit the availability of water for human uses. Thus, as a compact signatory, and given evidence of increasing scarcity and potential for water use conflicts, Michigan adopted a new framework to balance human and ecological water uses.

 This framework looks to property law and regulation to balance water use by humans and what is needed to maintain natural systems. Ownership of land adjacent to surface water affords the landowner the right to use surface water (referred to as riparian rights). Ownership of land also affords the landowner the right to access ground water below the surface. However, in both cases, rights to use water in Michigan are qualified, not absolute, and are subject to the principles of correlative rights and reasonable use.

Under our correlative rights system, an individual water user cannot diminish another’s ability to reasonably use the same water source; reasonable use is intended to prevent water from being used in any way that reduces usefulness of the water resource for the common good.  (Water law in Michigan and most of the eastern U.S. states differs from the prior appropriation principles used in western states where water use is not tied to land ownership and rights of use give preference to those who have used water the longest at the expense of more recent users. Riparian law in Michigan has never recognized the “first in time, first in right” principle.)

Regulation in Michigan provides for protection of water-dependent ecosystems.  Proposed water withdrawals with the capacity of 100,000 gallons per day or more must be evaluated prior to initiation to ensure it will not cause negative ecological impacts. If low water levels (caused, for example, by overuse, drought, or changes in the region’s hydrology as a result of changes in climate) are observed, Michigan’s Department of Environmental Quality (DEQ) is charged with mitigating ecological damages.

The preferred approach is for all water users in the affected watershed to collaboratively and voluntarily reduce their combined withdrawals so that the ecological damages are mitigated. If water users cannot develop a solution cooperatively, then either some uses will be prevented or conflicts will be resolved through time-consuming and costly litigation with uncertain results.

More information on Michigan’s water use program is available in the Michigan State University (MSU) Extension Bulletin WQ-60, “Considering aquatic ecosystems: The basis for Michigan’s new Water Withdrawal Assessment Process.”

These topics and other issues related to water and climate variability and change will be addressed as part of a series of five webinars on “Climate, Water, and Agriculture.” These free webinars run from 1 p.m to 2 p.m. on the following Fridays: March 9, 16, 23, 30 and April 13. The World of Water Policy in Michigan will be held March  23. Registration is requested at http://bit.ly/climatewaterwebinar.

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