Ellen Kohler on Water Management in Michigan

Ellen Kohler has published “Ripples in the water: judicial, executive, and legislative developments impacting water management in Michigan” as the lead article in Volume 53 of the Wayne Law Review.

Here is the introduction to this interesting paper:

Michigan is defined by water. The two peninsulas touch four of the five Great Lakes, creating 3,300 miles of Great Lakes shoreline. We enjoy 35,000 inland lakes and ponds, and 34,000 miles of rivers. Michiganders are very aware of our surface waters-we swim, fish, and boat in them. We see them on our maps of the state.

The water underground is more of an afterthought. Most of us don’t know how far underground the water is, where it is, or how it moves. Yet, groundwater is essential for our public health, safety, and welfare.

A large part of Michigan’s population relies on groundwater resources for domestic use, public water supply, and non-domestic uses. Total groundwater withdrawals are estimated at over 700 million gallons per day. Public water supply and domestic wells are the largest groundwater users, followed by irrigation (primarily for agriculture) and self-supplied industrial use.

Almost all surface waters in Michigan are supplied in part by groundwater discharges. About eighty percent of the annual flow in Lower Peninsula comes from groundwater discharge. Both direct and indirect groundwater discharges are important parts of the Great Lakes’ water budget. Many lakes and wetlands are fed only by groundwater and precipitation. As a result, most of Michigan’s aquatic ecosystems are dependent upon the discharge of groundwater into surface water, although our knowledge and understanding of this relationship varies considerably by both species and habitat type.

While we know more about one than the other, surface water and groundwater are interdependent parts of the larger hydrologic cycle. What happens in one part of the system affects other parts of the system. While we may understand this as a matter of fact, it has not been recognized as a matter of law in Michigan.

In Michigan, most of the statutory definitions of waters of the state include bodies of water both on the surface and underground. However, it is the unseen waters-the underground waters-that have caused the largest ripples recently. In a four month period, changes in common law, discussions among governors and premiers, and adoption of new legislation have caused some of the most significant changes to water management on a state-wide basis in decades. In November 2005, the Michigan Court of Appeals issued a decision in Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc., addressing the impacts of groundwater pumping on the surface water rights of riparian landowners. In December 2005, the eight Great Lakes States and two Canadian provinces within the Great Lakes Basin signed the Great Lakes-St. Lawrence River Basin Water Resources Compact and the Great Lakes- St. Lawrence River Basin Sustainable Water Resources Agreement. The Compact addresses large scale uses of Great Lakes water, both surface water and groundwater. In February 2006, the Groundwater Conservation Advisory Council issued its final report regarding groundwater management, and the Michigan Legislature passed and the Governor signed legislation addressing the management of water uses.

This article will review in detail each of these significant developments in chronological order and relevant events since this period, discuss their potential implications, and conclude with a summary of some remaining issues regarding the future of water management in Michigan.