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A Five Point Approach to Protect and Conserve Michigan’s Water Resources and Future

January 23, 2004 |

To: Hon. Jennifer M. Granholm
 Governor of Michigan
 Mr. Steven E. Chester
 Michigan Department of Environmental Quality

 Submitted by:
 Michigan Citizens for Water Conservation  (“Michigan Citizens)
 January 23, 2004

 A Five Point Approach for Michigan Water Policy and Law 

Full Proposal

Michigan Citizens recommends a Five-Part approach to address Michigan’s looming crisis involving our precious, valuable water and related water resources.  This Approach and the Comments that follow are offered to you and the State to establish a framework and principles to promote the security and prosperity of Michigan’s citizens, businesses, and industries who depend on the use of our water.  Michigan Citizens is committed to working with the State and other organizations and interests in helping enact or implement these principles.  Michigan Citizens firmly believes that the citizens of Michigan treasure our water and will insist that the State exercise its utmost authority as stewards of our water to secure Michigan’s future and trust responsibility to see that the water is not diverted and sold out of our watersheds, and that it is managed wisely for those who depend on its use here.  Michigan must take charge of its water on the behalf of everyone, so that decisions regarding its diversion, sale, or use are made by the people through their elected officials and legislators in accordance with the rule of law. If Michigan does not take charge, it will not be able to fulfill its stewardship responsibility toward its citizens and future generations

 1 Michigan Citizens for Water Conservation is a non profit corporation whose purpose is to conserve and protect Michigan’s water and related natural resources.  It was formed initially to protect the rights of riparian land owners, ordinary citizens or the public who use and enjoy our state’s magnificent lakes and streams, from the diversion and sale of water out side of watershedin Mecosta County by Nestlé Waters North America’s.   Circuit Judge Lawrence Root ruled that such a diversion was unlawful where it measurably diminishes the flow or level of a stream or lake. Michigan Citizens v Nestlé Waters North America, Mecosta County Cir. Ct. No. 01-14563-CE. Opinion and Judgement/Order, Nov. 25, 2003.

1. Part 1  Adopt a  Michigan Water Protection and Conservation Act that declares and asserts the State’s common law sovereign interest in the water, as a public resource (including public trust in the waters of the State) on behalf of its citizens.  Such a declaration conforms to and reaffirms the basic cornerstone of all Michigan water law and the declaration in Art 4, Sec. 52 of the Michigan Constitution that air, water, and natural resources are of paramount public concern.

The State has the constitutional power to affirmatively assert control of the waters of the State under the common law, including its sovereign interest in water, and the Michigan Constitution of 1963, Art. 4, Sec. 52.   It may constitutionally prohibit (or, if it so decides, license) the diversions of water for sale outside of the watersheds of our State.   It may also require where appropriate regulatory permits for water withdrawals for other uses within the State. The regulation of withdrawals would be similar to the  approach suggested by Senate Majority Leader Ken Sikkema and his Water Task Force in 2002.   It would also be similar to what Governor Granholm has outlined for the regulation of water withdrawals in the announcement of her Michigan Water Legacy program.  See Part 3, below.

2. Part 2 Adopt a Prohibition Against Diversions of Water for Sale . This would prohibit the diversion for sale of water, where pure water is the product, out of Michigan’s watersheds (or, alternatively, outside of some other defined hydrogeological unit or, in addition, the Great Lakes basin) consistent with the Michigan Constitution, Art 4, Sec. 52, the common law of sovereign interests over water, and existing common law and  statutes.  (The State may elect to allow under a very narrow exception the right to license water from the state, but only to the extent expressly authorized by the Legislature and/or through an authorized delegation to the appropriate administrative agency(s).  Any such exception would be subject to fundamental principles applicable to the licensing or reallocation of public resources in which the State has asserted its prerogative of sovereign control.

As noted, Part 2 would prohibit diversions for sale except those that may qualify for a license under very narrow exceptions; this is similar to the narrow exceptions and standards recognized by public trust: public purpose, consistent with information and
 2 Eg. the Legislature has already declared in the Great Lakes Preservation Act, MCL 324.32702, that the waters of Michigan, including lakes, streams, groundwater, and the Great Lakes, are a “valuable public resource held in trust for the management and protection for the benefit of all citizens.”
3 See Comment Note a., below; see also Comments for Senate Committee on Natural Resources and Environmental Affairs, Re: Substitute No. 2, S.B. 289, Submitted by James M. Olson, On Behalf of Michigan Citizens for Water Conservation, April 29, 2003.

4 For a more thorough discussion of the nature of ownership of water and the State’s power to assert a sovereign interest in water, see Selected Comments and Analysis, paragraph a., below.

comprehensive plans- i.e. in accordance with any plans in effect under Part 4, below, or state or local land use plans- and also such as necessity, no diminishment, no harm (including cumulative harm) fair compensation, best conservation practices, and demonstration of no alternatives.
Existing facilities and operations could be grand-fathered but would have to apply for a license and meet all standards under Part 2 and Part 3, below. (The State should decide not to allow private water marketing or commodification of water all, except for those already existing and grand-fathered and these would have to meet the standards, as stated above, by application for a license that would be good for a term of years consistent with the life of the infrastructure)  If an exception is created and a sale or export of water is licensed (including existing water marketers under grand-father or amortization-type provisions), then a license would be required for a period of years, conditioned on obtaining a permit in accordance with the provisions of Part 3, below.   A license, if authorized, would be revocable if any material condition was violated, and there would be a clear statement that the license does not grant any property right or interest, but only a revocable license or privilege to sell the water based on the terms and conditions of the license.

Because existing municipal water supplies are authorized by statute already, these water systems would be deemed licensed by the State and would not have to comply with this Part.  Likewise, consumptive uses for agriculture, golf courses, ski resorts, manufacturing or other industrial processes, or as incorporation into packaging or products, like fruit and vegetable packing, would not fall within the “diversion for sale” and therefore not be subject to Part 2. However, if a private person seeks to acquire water from a municipality for sale outside of the watershed, it must obtain a license within one of the narrow exceptions, if any is created, under Part 2.  Note, the trigger here is diversion for private sale (not use) out of a watershed, which is applicable to persons both in and outside of the state.

By definition this Part 2 would only apply to the diversions for sale of water as a product in any size container, bulk or bottle, but would not apply beverage or similar industries that incorporate water as a component or medium for their products; these industries would fall under the withdrawal regulations of Part 3, below.  Again, existing businesses selling water, provided such is determined to be in an otherwise lawful manner, would be able to continue withdrawing water for sale, but only at existing limits provided it applies for and obtains a license. After the expiration of the term of years, an application would have to be filed and to comply with Parts 2 and 3.  Any increase in the level of withdrawal of water would be
3 The beverage and other consumptive uses have been distinguished as different classifications because they present less risk to the State’s sovereign interest and control of water itself.  If water itself would be treated as a “consumptive use,” as some of have argued, then the State would lose its ability to exercise its prerogative right to hold and manage the water as a valuable public resource held in trust for its citizens.  Moreover, it would threaten or bring about the alternation of property and water limitations, such as riparian rights and public trust which the State has an obligation to protect.

prohibited unless it fit a narrow exception under Part 2.  Since the narrow exceptions would be limited to (1) a license for sale of water for a public purpose; or (2) a license for sale of an existing facility, any expansion would be prohibited. In addition to State license requirements, any license under Part 2 would have to comply with any standards under Part 3, applicable water or land use plans under Part 4, any compact with the Great Lake states and/or provinces, and any other applicable laws and regulations.

3. Part 3  Adopt a Water Resources Protection, Conservation, and Withdrawal Act that is consistent with the State’s public interest in the water, the public trust in navigable lakes and streams and their tributary waters, and the common law regarding private rights to use water under the riparian-groundwater law.  Part 3 would establish a permit system to regulate water withdrawals based on need, conservation alternatives, appropriate criteria that protect against actual or likely impairment, loss of water, or harm to other users or lakes, streams, or other water dependent resources, consistent with both common law water law standards, such as riparian standards when a shallow aquifer and lake or stream are involved, and standards in ILSA, WPA, and other laws and regulations.  When no lakes, streams, or wetlands or other sensitive environment is threatened with harm, the harm would be regulated by standards tied more closely to principles of reasonable use  between competing users as opposed to the more stringent standards that protect lakes, streams, and wetlands.  Additionally, any proposed withdrawal would have to comply with any additional standards imposed by the Great Lakes Charger 1985 and Annex 2001 if implemented, if these agreements are applicable.

As noted, a proposed withdrawal should also be consistent with any State or local government land use or water plan established under Part 4, below, and, again, with any commitment of the State under any compact with other Great Lakes states and/or the provinces concerning waters of the Great Lakes basin.  Part 3 would also require hydrogeology or hydrology studies and informational standards for withdrawals in excess of 100,000 gallons per day if the withdrawal is from a lake, stream, or wetland or from a shallow aquifer connected to a lake, stream, or wetland.  Hydrogeology studies would be required for withdrawals from deeper aquifers or groundwater not connected to surface waters that exceed 250,000 gallons per day.  The extent of hydrogeological or hydrology information required for an application would vary with the size of the withdrawal, the existence nearby wells or surface waters, or other circumstances unique to the site.  The hydrogeological studies and information would be incorporated by the Department of Environmental Quality into a Water and Water Dependent Resources Information Base, which would be available to the public, and which would be compiled on a regular basis and filed with the Legislature as part of a State of the Water Report that would be prepared every 5 years.  This information would also be used to assist the State and local communities in the preparation of land use and/or water use plans under Part 4, below. This would supplement or amend the information required by final substitute SB 289, enacted in 2003.  The MDEQ could in appropriate circumstances require monitoring of the draw-down of the groundwater table or the diminishment of flows or levels of nearby lakes, streams, and wetlands would be required as a condition to any permit

Part 3 would also impose a system of fees and reporting requirements to help finance adequate administration of the program and supplement the State’s information base to map groundwater and groundwater-surface water interaction.

Note.  As an alternative or immediate solution to address effects and impacts on lakes, streams, or wetlands caused by pumping or withdrawals from the shallow aquifers that feed them (tributary groundwater), the MDEQ could rescind its  existing regulations that interpret “diminish” under the Inland Lakes and Streams Act (now Part 301 of the Natural Resources and Environmental Protection Act), MCL 324.30101, et seq. (“ILSA”) and “drain” under the Wetland Protection Act (now Part 303 of the Natural Resources and Environmental Protection Act), MCL 324.30301, et seq. (“WPA”).  This would allow the MDEQ to administer these Acts and require permits to any situation where the withdrawal of water diminished a lake or stream or drained a wetland consistent within the plain meaning of the Acts as written and adopted by the Legislature.  It would also be consistent with Judge Lawrence Root’s ruling in Michigan Citizens v Nestlé Waters

A permit under Part 3 would not alter any remedy or common law property right of others, and would not create any property right or interest in the water itself, only the permission to use the water in accordance with the terms and conditions of the permit.

4. Part 4  Adopt a Water Resources Planning Act to establish and coordinate a State Water Resources Plan with Land Use Goals accounts for water, its use, its scarcity or abundance, its non- renewability if removed or diverted, its future need, conservation, feasible and prudent  alternatives, and its restoration or  enhancement, within the State and Great Lakes basin as it relates to people, their health and safety, industry, recreation, and the sustainability of the environment and economy, and that accounts for its value, qualitative, quantitative, and economic.
6 Opinion and Judgement/Order, Nov. 25, 2003, pp. 55-60. 

Part 4 would also provide authority for local government to prepare and adopt water plans as part of their local comprehensive, master plans or land use plans under existing county, township, and city planning and zoning laws.  Once adopted, local governments would have authority to enact ordinances that regulated water use as a land use consistent with the scope of existing authority in the applicable local government zoning act.

5. Part 5  Adopt a Water Resources Protection and Conflict Resolution Act that provides for the resolution of conflicts between water users or water users and the environment, health, safety and general welfare, taking into account the standards in Part 3, above. The resolution process would establish an Office of Water Conflict Resolution, which would  process water conflict complaints and assign them to accredited mediators or alternative dispute resolution persons. The mediation or dispute resolution process would proceed in accordance with a procedure conducive to resolution of conflicts adopted by the Department of Environmental Quality (along with Department of Agricultural in the event the conflict involves one or more agricultural users).  If the conflicts are not resolved within 90 days, either party  could request a de novo contested case type hearing under the Administrative Procedures Act.  All interested or affected persons would have a right to notice and to intervene consistent with rules for intervention under the Michigan Court Rules.  The decision by the Department would be final as provided by the APA and the  Natural Resources and Environmental Protection Act, except that parties would have the right to appeal to circuit court or take such other action as provided by the NREPA.


 Comments and Analysis

a. Art 4, Sec. 52 declares that the conservation and development (in the sense of protecting the recognized public interest in the natural resources of the state) are of paramount public concern, and mandates that the legislature shall pass laws to protect the air, water, and natural resources from “pollution, impairment, and destruction.” The Official Record, Constitutional Convention, shows that the Constitution mandated that the State Legislature protect the public interest waters and natural resources, and noted that it is an interest held by the State for the benefit of its people.

The state interest in navigable waters, under both federal and state tests, is proprietary, in the sense that the State holds legal title, consistent with existing common law and statutes.  Non-navigable waters, including groundwater, would be subject to the state’s sovereign interest under Mich Const 1963, art 4, § 52, which declares: “The conservation and development of the natural resources of the state are hereby declared to be of paramount concern in the interest of the health, safety, and general Michigan statutes also recognize the states’s interest welfare of the people.” It would also be subject to the state’s sovereign interest as declared under the common law, as discussed immediately below.  For example, the Great Lakes Preservation Act, supra, declares: “The waters of the state are valuable public natural resources held in trust by the state, and the state has a duty as trustee to manage its waters effectively for the use and enjoyment of present and future residents and for the protection of the environment.” MCL 324.32702(c).
7 The Michigan Supreme Court has recognized that local governments may zone to protect natural resources, including water resources. 

Michigan’s primary water protection statute, Part 31, NREPA, MCL 324.3101, et seq. (formerly the Water Resources Protection Act, also define “waters of the state” to mean “groundwaters, lakes, rivers, and streams and all other water courses....”  MCL 324.3101(i). See also Inland Lakes and Streams Act (now Part 301 of the Natural Resources and Environmental Protection Act), MCL 324.30101, et seq. (“ILSA”); Wetland Protection Act (now Part 303 of the Natural Resources and Environmental Protection Act), MCL 324.30301, et seq. (“WPA”). The Great Lakes Preservation Act defines “waters of the Great Lakes basin” to mean “all streams, rivers, lakes, connecting channels, and other bodies of water, including groundwater, within the Great Lakes basin.”  MCL 324.32701(k).

Further, our appellate courts have declared that state law concerning water “clearly indicates the state’s interest in its natural resources,”  US Aviex v Travelers Ins Co, 125 Mich App 579; 336 NW2d 838 (1983), and that groundwater does not belong to the owner of the land, but to the state “because of its independent interest, behind the titles of is citizens, in all the air and earth (i.e. its natural resources) within its domain.”  Upjohn v New Hampshire Ins Co, 178 Mich App 706; 444 NW2d 813 (1989).  See also Arco Industries Corp v American Motorists Ins Cos, 232 Mich App 146; 594 NW2d 61 (1999)8.
8  In these cases groundwater was held to belong to the state or subject to a superceding public interest in the groundwater and natural resources of the state so as to exclude groundwater as property of the insured under standard CGL insurance policies.  See also Anderson Development Co v Travelers Indemnity Co, 49 F3d 1128, 1134 (CA 6, 1995).

In summary, surface waters and groundwater in Michigan are not owned by anyone, but are held and shared in common as part of the waters and natural resources of the state.  Rights to own and sell water, as distinct from the right to use the water within the common law for farming, industry processes, or as a component or incorporated into a product, exist only by valid legislative grant or delegated authorization. Private individuals or corporations cannot lay claim to Michigan’s water, including groundwater, and divert, sell and market it out of a watershed as a private commodity, at least not without the consent of others or the state who share the usufructuary right in common and not without the assent of the people of Michigan through proper legislation under the mandate of Art 4, Sec. 52 of the Michigan Constitution of 1963 or statutes defining the “waters of the state” or “waters of the Great Lakes basin.”   No one under the guise of the reasonable use of water can claim ownership of water merely because the water is running under and through her or his land and they have a right to use the water in connection with or to further a valid social value regarding the use of land.

b. The State’s immediate exercise of its sovereign ownership and control over its freshwater is less likely to be preempted or hampered by NAFTA, WTO, and other trade agreements designed to insulate international corporations from trading in certain defined goods, including natural resources like water. At the United Nation’s World Water Forum III, March 2003, trade representatives from nations around the world failed to endorse language that freshwater is a public as opposed to a private good.  These international trade agreements have already resulted in chilling damage claims against states (Eg. A Canadian company filed a Chapter 11, NAFTA damage claim of $970 million against the United States as a result of California’s banning of its MTBE as a gasoline additive because of MTBE’s substantial carcinogenic risks. See Warren, Paying to Regulate: A Guide to Methanex v United States, 31 ELR 10986 [Aug. 2001]). Foreign corporations have claimed tens of millions of dollars because states have lawfully  prohibited them from dumping wastes or products in a state that pose significant health and environmental risks. The same will happen, only to a much larger, perhaps unfathomable degree, if states like Michigan do not act assertively and quickly under their inherent powers to assert public control and interests in their water resources.  NAFTA , the WTO or other international trade agreements may be able to insulate corporate international trade in private goods and services from state and local regulations,  but they cannot affect state declarations and assertions of their sovereign and public interests, or definition of proprietary or water rights, in the freshwater itself. See Gantz, Reconciling Environmental Protection and Investor Rights Under Chapter 11 of NAFTA, 31 ELR 10646 (June 2001); Dhooge, The North American Free Trade Agreement and the Environment, 10 Minn. J. Global Trade 209 (2001).
9  It should be noted that under state constitutional law principles, as contrasted with the federal United States Constitution, the state has all common law power except as limited by the state constitution.  In other words, while the federal constitution is purely a grant of power from the people to the federal government, the state constitution operates, in so far as the common law is concerned, as a limitation of power.  Pacific Telephone and Telegraph v Eschelman, 166 Cal. 640, 16 Am Jur 2d, Constitutional Law, Sec. 17, 228.  Nothing in Michigan’s Constitution, 1963, limits the legislature to assert its state interest in the waters of the state or Great Lakes basin.  Indeed, Art 4, Sec. 52, declares the public interest in these waters, and those who have a right under the common law to the use of water, either riparian or groundwater, enjoy those rights, but not as owners of the water.  Such private use is necessarily, then, subject to common law limitations and  state constitutional and legislative declarations and definitions.  The legislature has the power to act affirmatively to the extent authorized under the constitution. Michigan’s legislature has acted and defined groundwater as “waters of the state,” MCL 324.3101(i),“waters of the Great Lakes basin,” MCL 324.32701(k), and “public natural resources held in trust.” MCL 324.32702(c). 

c. The declaration and legislative finding in Section 32702(b), MCL 324.32702(b), that the “waters of the state are a valuable public resource held in trust by the state” is proper and should be re-stated as a legislative finding in any new comprehensive water law.  This will avoid unnecessary conflict over claims that the absence of such language shows a legislative intent to move away from such a declaration.  This could severely hamper Michigan’s citizens and businesses and the ability of the States or local governments to control their water resources  against political and economic pressure outside of the state or Great Lakes basin.  In this way, the legislature should fashion a water law that is consistent with prior constitutional and statutory declarations, and not infer that the water concerns, for example, covered by Part 328 or to be addressed by a proposed “Groundwater Council,” are not viewed the same as under Part 327.  It would be prudent that this finding continue and be re-affirmed.  Suggested language:

The waters of the state, including the Great Lakes, Lake St. Clair, and their connecting and tributary waters within the State, including lakes, streams, groundwater, and other bodies of water, are valuable public resources held in trust by the state for its citizens in order to manage and protect these waters and their uses from unauthorized diversion, sale, diminishment, or likely pollution, impairment, destruction.

d. Senate Bill 289, substitute, Part 328, before Senate Committee on Natural Resource and Environmental Affairs, March 2003, in part, charged a “Groundwater Council” to advise the legislature on the extent to which groundwater is subject to selected criteria of Annex 2001.  First, the legislature must carefully qualify this charge to address “the state’s future responsibilities toward the consumptive use of groundwater” under Annex 2001.  This assures that withdrawals and diversion to sell groundwater outside of the basin will not be treated as a “consumptive use” like other products in which water is a component.  Part 327, MCL 324.32701 et seq., defines “waters of the Great Lakes basin,” including groundwater, and prohibits diversion of any waters outside of the basin or watershed.  A common sense interpretation of the definition of “consumptive use” under Section 32702(b), if read in the context of the prohibition of diversions under Section 32703, is that the term does not include groundwater or surface waters that are withdrawn and diverted for sale outside of the basin.  Obviously, if a diversion of groundwater for sale as water is treated as a consumptive use, then the inclusion of groundwater in the definition of “water of the Great Lakes basin” as that term is used in the prohibition of diversions, would be meaningless.  The Court in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc. Mecosta County Circ. Ct. No. 01-14563-CE, Opinion and Judgement/Order,p. 67, agreed with this interpretation:
10 For a discussion of the State’s inherent sovereign power over its water, see Olson, James M., Future Gradient of Water Law, Conference on National Groundwater Crisis, Toledo College of Law, March 14, 2003.

The definition I just quoted from the GLPA recognizes the value of water being incorporated into products from Michigan and sold wherever a market can be found.  The key to this is that water is incorporated into a product to be recognized as being under the social value protected.  However, if water is the product, the rationale loses its logical force in the face of the higher social value of preserving water as water.  To argue that Defendants’ bottled water is a product in which water is incorporated ignores that water, by its nature, must be containerized to be handled.  Packaging it only makes it easier to transport and to market.  Given that water is a natural resource on its own, I believe that the state has a rational basis on which to limit its removal as water from the state and/or the Great Lakes’ basin in a much more compelling way than situations in which water is but a component of a product, the manufacture of which has presumably been of some economic benefit to a citizen and taxpayer of the state, and thus the state also.

e. The State must be very careful not to define water itself when in a container as a “consumptive use” at least not until the water right to divert and sell the water has been prohibited or allowed by license within the narrow exception of Part 2, above, and, again, only in accord with proper standards, such as valid public purpose or public interest, no diminishment of lakes, streams, no harm to wetlands or other interests of the state and others, best conservation practices, no alternatives, and if all the foregoing are established, fair compensation in the form of a royalty paid to the state.   It is absolutely essential, and in any event preferable, that the state assert its sovereign interest before addressing these legislative solutions, so that the exercise of power by the state is not only regulatory, but in the nature of the exercise of the state’s inherent property power to protect public commons and public resources.

f. Citizens and affected persons, such as riparian owners or members of the public who enjoy and use the waters or possibly affected waters in question, should have the right to participate in any agency proceeding under these Parts, and would be able to initiate a citizen suit for judicial review under the MEPA, NREPA (or directly under the new statute).
11 At a recent national groundwater conference at Toledo College of Law, November 14, 2003, a panelist supporting the bottled water industry argued for a stronger distinction between diversions of water and consumptive uses regarding the application of Annex 2001, but then also would expand the definition of “consumptive use” that would conflict with and unduly expand the definition of MCL 324.32702, as interpreted by the Court in Michigan Citizens v Nestlé Waters,  so it would include bottled water.  It seems obvious that water marketers would want to label water a “consumptive use,” largely because it will avoid the more stringent diversion standards of Annex 2001, and perhaps more importantly, make it difficult for states, like Michigan, to assert its sovereign interest in water or regulate against potential challenges under the commerce clause, takings clause, or international investment treaties, like NAFTA and WTO.  This is exactly why Michigan needs to declare the water as a sovereign interest and held in trust, and why it must protect existing common law definitions and principles of property and water law as those articulated by the Court in Michigan Citizens v Nestlé Waters.  Generally, compromising the State’s interest in water, as sovereign on behalf of its citizens, will hurt consumptive water users in Michigan by potentially subordinating their in-base use to diversion and sale of water out of a local watershed or the Great Lakes basin.  If the legislature wanted to assure protection against private diversion and sale of water in bottles, it could clearly state that “... incorporation into products, or other processes does not include a withdrawal and diversion of water for sale as water out of a watershed of the State or outside of the Great Lakes basin.”   

Because of the substantial public interest and importance of such a dispute, a court would be authorized to award costs, expert fees, and attorney fees (“may ... in the interests of justice and vindication or airing of important public interests).
12 Note, in Michigan Citizens v Nestlé Waters, the trial court recognized the substantial burden on citizens or affected persons by a proposed water diversion and sale and that they should be awarded fees and costs for undertaking such a public interest lawsuit.  “Nemeth ... analyzed such MEPA claims and determined that attorney fees are not recoverable under MEPA.  The Court did so noting at page 43 the injustice of such when private citizens enforce Michigan’s law of the environment by way of private action with them essentially acting as private attorneys general ....  While I am bound by that ruling, I am not happy with it and urge the legislature to at least give the courts the discretion to award attorney fees in cases in which the courts find such to be appropriate based on the facts and claims in such cases.” Root, Lawrence, Circ. Judge, Opinion and Judgement/Order, Nov., 25, 203, pp. 65-66.

Summary and Request
Michigan has the constitutional and common law authority to affirmatively assert, on behalf of its citizens, a sovereign interest in the State’s waters.  It may, as it has done in the past, declare the waters of the state to be a sovereign interest or public resource that is common to all citizens and that these waters are held in trust and to be managed and protected for the benefit of all citizens. Michigan Citizens proposes a Five Point approach that builds on the integrity of this sovereign and trust interest in the waters of our State, our Constitution, and the principles and standards under our Constitution, statutes, and common law, including those principles achieved through the trial court decision in Michigan Citizens v Nestlé Waters.

Michigan Citizens believes that the implementation of these principles will help secure the future of Michigan’s prosperity and economy, and best protect our citizens, riparian property owners, fishermen, boaters, the many other recreational pursuits dependent on water.  It will also form the baseline of protection for farming, manufacturing and tourism against the threat of specific exploitation by others in the rising tide of a global demand and crisis over freshwater who seek to seize our water to divert and sell elsewhere without the State’s consent or control.  Water is not owned by anyone, but is used by everyone.  The State must take charge of its water on behalf of its citizens and businesses, or it will be too late and there will be too little that the State can do if does not act now.  The Michigan Legislature lamented its failure to implement this kind of protection when the natural legacy of Michigan’s vast forests fell to the sharp edge of demand for its export.  Michigan can ill afford to make the same mistake when it comes to enacting a plan to secure the legacy of Michigan’s water.


Michigan Citizens for Water Conservation
Dated: January 23, 2004

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