Great Lakes Water Rules Take Shape

June 29, 2008
| By Pete Daly |
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LANSING — Legislation that makes Michigan a member of the Great Lakes Compact may help protect the region's water from diversion to distant states, but it will also ensure that businesses in Michigan can know in advance just how much groundwater they can legally withdraw in any given location.

"Entrepreneurs will know whether they can invest in a location and know whether they're approved" for large scale groundwater withdrawals or not, said Mike Johnston, director of Regulatory Affairs at the Michigan Manufacturing Association.

The MMA is a member of The Water Works Coalition, which supports the bills enacted by the Legislature last week.

Gov. Jennifer Granholm's signature was anticipated any day.

There are 15 groups in the coalition, including the Michigan Chamber of Commerce. Other organizations outside the coalition, which also support the legislation, include the Michigan Farm Bureau and Michigan United Conservation Clubs.

Johnston said the agreement last week between the House and Senate means "all the issue fighting is done."

Membership in the Great Lakes Compact was not part of the debate: Johnston said virtually everyone involved in the issue in Michigan favors the compact, which prevents diversion of Great Lakes water to other states. The real debate in Lansing had a lot to do with trout, and the concept of "public trust."

Large withdrawals of groundwater, such as those by bottled water companies now active in Michigan, can have an impact on nearby rivers and streams. Groundwater entering the waterways via springs adds cold water, which lowers stream temperature to levels favorable for trout populations. 

The two-part debate in Lansing over the last year has been focused on how much groundwater withdrawal will lower the local trout population, and who has a greater right to control of groundwater use — the property owner or the government.

According to Johnston, the original Senate proposal would permit groundwater withdrawals impacting no more than 5 percent of the local trout population. The opposition, represented by Clean Water Action, Michigan Environmental Council and Michigan Chapter of Trout Unlimited, wanted zero impact.

The compromise accepted by both sides will permit an impact of no more than 3 percent.

New scientific technology enables the government to determine very closely just what the impact would be of varying degrees of groundwater removal. A computer program — called an "assessment tool" — can create a model that predicts impact of groundwater removal. Eventually, it will be accessible by everyone online, so that any individual or business enterprise proposing to remove large volumes of groundwater can determine in advance if its plans are within state guidelines.

"We've had vague … narrative standards," Johnston said, when it comes to commercial use of groundwater in Michigan.

"We think we've achieved something unique" with the legislation just passed — "a level of certainty in the world of resource management," he said.

The other major issue in Lansing revolved around "the public trust" and effective ownership of groundwater.

"The environmental community wanted to create this concept of public trust (in regard to ownership of groundwater), wanted to push the issue of public trust beyond its legal bounds," said Johnston.

He said that under common law in Michigan, the issue of public trust applies to navigable lakes and streams. "Navigable" has been interpreted, in effect, to mean waterways that can be used to move 20-foot logs — which was a major legal issue in the first century of Michigan's history.

Public trust is "a concept that doesn't fit with groundwater" below the surface, said Johnston.

"But they wanted to extend this concept of public trust to say that the government owns that water underneath your property. We affirmed that the property owner owns that water or at least has rights to use that water. We fought them off and affirmed the property rights for the citizens of Michigan," he said.

Sen. Patty Birkholz, R-Saugatuck Township, said the legislation marks "a great day for the Great Lakes and everyone who lives near them.”

Birkholz is chair of the Senate Natural Resources and Environmental Affairs Committee.

According to Birkholz's Web site, three specific changes that will come out of the legislation are:

**Confirmation of Michigan's existing rights for water resource management and protection of private property rights.

**Clarification of the water withdrawal assessment tool.

**Reducing the groundwater withdrawal permitting threshold to 1 million gallons a day.

Johnston said the business community had pushed for a daily threshold of 2 million gallons, meaning that was how much groundwater a company could remove before it required special permits from the state.

Dropping the threshold to 1 million "was a huge concession by the business community to get agreement from the environmental community," he said.

The threshold requirement only pertains to so-called Zone C areas, where there are streams that could be adversely impacted by large water withdrawals. There is no threshold in areas where streams are not impacted.

The bottled water craze among American consumers fueled much debate over groundwater withdrawal by commercial enterprises.

Johnston cited the example of Nestlé Waters North America, which bottles its Ice Mountain brand of water in Michigan. The company was the object of a lawsuit a few years ago by environmentalists.

The legislative package worked out by the House and Senate, once it is signed by Granholm, will make Michigan a member of the Great Lakes-St. Lawrence River Basin Water Resources Compact, along with New York, Ohio, Indiana, Illinois, Wisconsin and Minnesota. Pennsylvania would also be a member but has yet to approve the compact.

Granholm is expected to sign the legislation this week or next, according to Johnston.

The Great Lakes Compact will develop common measures for each of the eight states in the region to regulate in-state withdrawals and prohibits Great Lakes water diversions to states outside the region.

The compact will require approval by Congress, however.

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