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Granholm Aides Eye New Way to Move Her Water Legacy Act

Legislative stall prompts new look at a bedrock law

April 5, 2005 | By Andy Guy
Great Lakes Bulletin News Service

MLUI/Pat Owen

Recently, low water levels have plagued Grand Traverse Bay.

LANSING — In the face of efforts by the Republican-led Legislature to stall Governor Jennifer M. Granholm’s proposal to improve safeguards for Michigan’s water supply, her administration is taking another tack. Senior officials of the Michigan Department of Environmental Quality say they are reviewing the state Inland Lakes and Streams Act (ILSA) to see if it can be used for the same purpose.

“The department has designated a formal workgroup to study this issue,” said Jim Cleland, assistant chief of the DEQ’s Water Division.

Governor Granholm, a Democrat, introduced her Water Legacy Act in March 2004 amid respectful media coverage and supportive statements from state Republican leaders. Ms. Granholm said her proposal would ensure a robust water supply by improving how Michigan managed water withdrawals. Though Ms. Granholm’s proposal attracted broad public support, the Legislature has yet to hold a hearing on it.

Enacted in 1972, the Inland Lakes and Streams Act (ILSA) regulates construction and other activities that threaten the natural condition of surface water resources. Now some legal experts say its plain language may help the governor accomplish much of what is contained in her stalled proposal.

ILSA requires a person to obtain state permission before undertaking a project that diminishes the quality of lakes or streams. But legal experts, advocates for the environment, and even some business leaders contend that “diminish” could be applied to activities other than dredging and filling. They argue “diminish” should also apply to water withdrawals, or at least to projects that could harm interconnected natural resources, riparian property rights, or the public interest in maintaining water resources.  

Governor’s Plan Hits Slack Water
The governor’s legislative proposal has been stalled for a year largely because business and agricultural leaders resist establishing a new permitting process, higher fees for access to water, and more oversight. Rewriting ILSA’s administrative rules could minimize those issues, according to experts on all sides of the question, by employing an existing, 32-year-old regulatory structure, public comment process, and rigid environmental standard long familiar to water users. The strategy appears to be gaining traction with key business leaders.

“The solution could have broad applicability and certainly warrants a deeper level of discussion,” said Jon Allan, the director of environmental services for Consumers Energy and past chair of the Michigan Chamber of Commerce’s Environmental Quality Committee.

Michigan’s current lack of comprehensive rules to evaluate withdrawal projects leads to legal conflicts between many competing users when groundwater levels fall. Michigan farms withdraw more than 100 million gallons of well water per day for irrigation, according to United States Geological Survey; industry withdraws 180 million gallons daily. More than 1.25 million Michigan homeowners have household wells; in 1998 more than 31,000 new ones were drilled, according to DEQ data. There is little monitoring or even understanding of the effect these withdrawals have on lakes, rivers, wetlands, and aquifers, according to water resource experts.

The DEQ’s possible use of ILSA reflects a sharp change in its attitude toward managing water withdrawals. Just three and one-half years ago, when Republican John Engler was governor, the department responded to a public outcry over the Mecosta County bottling plant proposal by saying it had little oversight. The agency claimed in August of 2001 that ILSA “does not regulate” water level or water volume changes “unless caused by dredging, filling” or similar activities. The statement was in a formal Response to Public Comments about the plant proposal, which came from Nestlé Waters North America. Opponents feared the plant’s heavy water withdrawals would harm an aquifer that feeds the Muskegon River.

Circuit Court Surprise
But Mecosta County Circuit Court Judge Lawrence Root disagreed with the DEQ’s formal response on November 25, 2003, after a trial that pitted Nestlé against the Michigan Citizens for Water Conservation, a citizen group formed to stop the bottling operation.

“With all due respect, [the DEQ’s] conclusion is simply wrong,” Judge Root wrote in his formal opinion. “I don’t know if the department’s decision to so narrowly interpret its statutory duty arises from a misreading of it, or arises from uncertainty regarding the physics of the process of groundwater withdrawals affecting surface water bodies, or is simply a product of limited financial resources to conduct the kind of studies necessary to evaluate projects.”

Judge Root halted the bottling operation, ruling that pumping threatened the river, connected wetlands, and the property rights of neighboring property owners, and said, “I believe ILSA presents an excellent standard for environmental protection.”

Although, as Governor Granholm urged it to, the state Appellate Court has temporarily stayed Judge Root’s decision, it nonetheless compelled the DEQ to reconsider ILSA as a possible tool to manage water withdrawals, according to the agency’s Mr. Cleland. He said modified administrative rules could guide state regulation of new and increased withdrawals. Those seeking major withdrawals could be required to obtain a permit, demonstrate that their project will have minimal effects on water resources, and comply with riparian and public trust law.

A Big Job
One major challenge is figuring out where a state agency operating on a limited budget should draw the line on regulatory responsibilities. “We’ve discussed the ILSA concept for months,” Mr. Cleland said. “It raises the question of ‘What is practical?’ The trick is figuring out which wells and what size withdrawals most directly impact those resources.”

Currently two different official groups are considering water law questions in Michigan. The Groundwater Conservation Advisory Council, established by statute in August 2003, is studying the sustainability of groundwater use, and the DEQ’s own Water Policy Work Group is seeking agreement about the need for water regulation among business, farm, environmental, and other interests. This January, WPWG agreed that Michigan needs better decision making to protect water resources from ill-advised withdrawals.

Environmentalists agree the state must identify appropriate pumping thresholds to better regulate applications for water use, and that revised ILSA rules must require formal hydrological studies, summaries of water conservation practices, and detailed information about pumping plans. But others say that ILSA is not suited to wrestling with the larger, unanswered questions about water privatization, diversion, and sale that projects such as Nestle’s raise, adding that such questions will eventually require legislative attention. Without it, they say, uncertainty will make it more, not less, difficult for Michigan businesses of all sorts.
Andy Guy, who writes extensively about sustaining the Great Lakes in the global economy, directs the Michigan Land Use Institute’s Great Lakes Project and reports on Smart Growth from the Institute’s Grand Rapids office. Reach him at aguy@mlui.org. To read his ongoing coverage of state water issues, go to www.mlui.org and type “water” into the search engine. Andy’s special report on building prosperity through better water management will be published in May.

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