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Lawmakers Flood Lansing with New Water Bills

Great Lakes protection returning as ’06 campaign issue

November 8, 2005 | By Andy Guy
Great Lakes Bulletin News Service


After months of stalling proposals to protect the state’s freshwater supply, the Legislature is awash in new bills promoting everything from more groundwater studies to strict conservation regulations.

LANSING – Just in time to ride the tide of public opinion rolling toward the 2006 election, the Michigan Legislature again is wading into a familiar debate: How best to protect Michigan’s Great Lakes, streams, wetlands, and aquifers from reckless water withdrawals.

Sixteen new water bills introduced by Democrats and Republicans are floating around the Capitol. The proposals would address everything from aggressively expanding regulation of large water withdrawals to simply promoting more study. Public testimony on the first of the proposals began today in the state Senate. Republican leaders, who control both lawmaking chambers, have pledged to send new legislation to the governor by the end of the year.

For their part, Democrats in the state House of Representatives kicked off the latest political parrying over water on Oct. 26, when they introduced another package of legislation that is much more aggressive than what their Republican colleagues are currently proposing. The Democrat bills, which have some Republican support, would shield lakes, streams, and existing water users from heavy withdrawals, encourage conservation, and place strict standards on water diversions outside the region.

The contest of competing proposals comes as both parties gear up for what is expected to be a contentious, intensely partisan gubernatorial race. And, even though lawmakers have done little on the issue over the past four years, both parties appear ready to use Great Lakes water security as the cornerstone of their environmental commitment, just as they did in the 2002 campaign.

“Great Lakes water is not for sale,” said State Representative Matt Gillard (D-Alpena).

“There’s no immediate emergency,” countered Republican state Senator Patty Birkholz, of Saugatuck, who chairs the state Senate Natural Resources and Environmental Affairs Committee, which held hearings on several water bills today.

But “water is the oil of the 21st century,” said State Senator Liz Brater, speaking for her fellow Democrats in the Senate. “We need to start thinking about the future.”

Lots of Bills, Little Action
Michigan has debated the water use issue for more than 20 years. So the recent spate of Great Lakes-friendly proposals leave political observers and water policy advocates wondering whether lawmakers intend to pass meaningful water laws or merely make more waves.

“They’re taking on more than they failed at doing in the past,” said Noah Hall, an assistant professor of law at Wayne State University who specializes in water policy. Mr. Hall’s skepticism is based on the fact that the latest proposals bring to 32 the number of bills introduced in the Legislature during the past four years to address water use, diversion, and bottling. Just two of those measures have become law.

Veteran political observer Bill Ballenger was at least as skeptical as Mr. Hall about the swirl of new, water-related legislative activity.

“I don’t see anything real significant happening this time around,” said Mr. Ballenger, editor and publisher of the Inside Michigan Politics newsletter. “The question is whether lawmakers can craft something that gets support from the Michigan Chamber of Commerce, the Michigan Manufacturers Association, and other industry groups.”

Cyndi Roper, the Great Lakes policy director for Clean Water Action, a national environmental organization, expressed alarm in a statement released after today’s state Senate hearings. Ms. Roper’s organization strongly favors a set of bipartisan House bills (HB 5366-5373) introduced in October with the support of her organization and 35 other groups and businesses. She noted that today’s hearing focused solely on the Republican proposals (Senate Bills 850-852), which she said would leave two-thirds of Michigan’s streams unprotected from water withdrawals, exclude the public from permitting decisions, and do nothing to regulate Great Lakes Basin water diversions.

“These bills were written by industry, for industry and send a strong message that Senate Republicans are willing to sacrifice the Great Lakes to special interests,” Ms. Roper said. “We expect that Michigan’s water-loving residents won’t sit still for this.”

Businesses Split Over Water
Trade associations have long resisted expanding the traditional command-and-control approach of regulating water users to protect the Great Lakes—and the lakes, streams, wetlands, and aquifers that feed them—from risky withdrawals and diversions. They fear heavy-handed government programs will cost too much money, slow investment and job creation, and restrict growth. The state’s unemployment rates, corporate bankruptcies, and waning economic competitiveness have strengthened that argument.

“Obviously, a lot of companies move to the state of Michigan and have jobs in this state because they utilize some of our resources, including water,” Representative David Palsrok, the Republican chair of the House Great Lakes Committee, told Michigan Public Radio on November 3. “So when we are developing these policies we’re trying to be very careful and cognizant of not hampering economic development.”

But a number of Michigan companies are finding that aggressive action to conserve water quality and quantity can actually reduce expenses, enhance their image, and boost competitiveness. For example, Ford Motor Company, Dow Chemical Company, and General Motors Corporation—all Michigan firms—have saved millions of dollars over the past several years by voluntarily improving their water conservation practices.

State leaders, however, continue to struggle to find innovative ways to connect economic growth and water resource protection. And so the discussion around the latest spate of Great Lakes legislative proposals has hardly changed, policy experts say: Lawmakers still view water stewardship and economic prosperity more as separate rather than complementary goals.

Back and Forth
The water use debate in the Great Lakes region extends well beyond what manufacturers can or cannot afford to do. It includes figuring out how best to stop thirsty states and nations from diverting massive amounts of water without regard for the local environmental or economic consequences. The debate also involves establishing a policy to protect homeowners and sensitive lakes, streams, and wetlands from farm and other industrial operations that draw heavily on groundwater they depend on, and deciding whether to treat water as a public resource or a private commodity.

In May 2005, Governor Jennifer Granholm, a Democrat, directed the state Department of Environmental Quality to update state environmental law to more clearly recognize water as a public resource. She asked the department to expand rules under the state’s Inland Lakes and Streams Act and require a permit for any water withdrawal that threatens to diminish an inland lake or stream. Her directive was based on Circuit Court Judge Lawrence Root’s November 2003 ruling in favor of the nonprofit Michigan Citizens for Water Conservation in their case against Nestle Waters NA.

“No one has sole ownership of the state’s water,” Ms. Granholm proclaimed. “It belongs to all of us.”

Environmental leaders celebrated Ms. Granholm’s strong stance on the issue. But recent Great Lakes Bulletin News Service interviews with Michigan Department of Environmental Quality officials and the governor’s staff reveal that the state actually backed away from that controversial decision some time ago.

“There’s no point in writing those rules now,” said Robert McCann, spokesman for the DEQ. “We’ll wait to see what happens in the Legislature. Then we may not have to bother.”

Critics, however, say that the latest change in the administration’s direction amounts to backpedaling, and argue that the delay in rewriting the legislative rules left the Capitol door open for much of the current legislative action and political posturing.

“Step-by-Step” Republican Proposals
Senator Birkholz seized on the opportunity and introduced legislation that aims to protect state-designated trout streams from heavy groundwater withdrawals. Ms. Birkholz said that her proposal, co-sponsored by fellow Republican and state Senate Majority Leader Ken Sikkema, of Grandville, is part of a “step-by-step approach” to develop what she describes as “carefully constructed measures” to simultaneously use and protect state waters.

Senator Birkholz’s proposal is part of a three-bill, Republican-sponsored package that would implement water withdrawal regulations near sensitive cold-water trout streams, expand and streamline reporting requirements for heavy water users, and extend the life of a state-sanctioned council—established by one of those two water bills enacted in the past four years—to study the water withdrawal issue further.

A powerful alliance of conservationists, farmers, and industrialists back the proposals. But environmental advocates say the measures could actually weaken existing environmental law by exempting some large water users. They also express frustration at the Granholm Administration’s quiet reversal on its pledge to update the Inland Lakes and Streams Act.

“The Birkholz bill would be completely unnecessary if the [state] applied ILSA,” said Jim Olson, the Traverse City-based attorney for the Michigan Citizens for Water Conservation. “And the law would be stronger. The need for water regulation is about more than protecting trout streams. This bill ignores rising global demand, the potential for privatization, and the need to manage this resource responsibly for future economic and environmental needs.”

Ambitious Democratic Proposals
Meanwhile, Democrats in the House and Senate introduced a much more ambitious proposal that directly addresses the issues of water privatization and diversion. One bill would reaffirm that water is a public trust resource and prohibit private water sales without legislative approval. Another would establish a public consultation phase for large water diversion projects.

That Democratic legislative package, which is supported by a handful of House Republicans and a statewide coalition of environmental organizations, would also implement new statewide standards for large water projects; shield a broader class of inland waterways, wetlands, and existing users from ill-advised withdrawals; and establish conservation practices for heavy users.

Many elements of the package echo parts of Governor Granholm’s proposed Water Legacy Act, which has languished in committee for more than 18 months without a single legislative hearing. If the first reaction of one prominent industry lobbyist is any indication, the new Democratic package may well suffer the same fate. The lobbyist described the new package as “way over the top.”

Republican leaders pledge to move some form of legislation by year’s end. But now several water policy experts and environmental leaders argue the state should wait for the Court of Appeals upcoming ruling on a prominent water diversion case in Mecosta County involving the Nestle' company. That decision, they said, could provide valuable guidance to the legislative process.

“It’s not clear what the law is now,” said Mr. Hall. “So it’s a little hard to talk about changing it. In the past, we’ve put off action to gather more science. Why not wait a little longer for some clarity on the law?”

Attorney Olson agreed. He also expressed concern about the direction of the legislative debate.  

“The Republicans have gone backwards because of pressure from industry,” he said, noting the party’s current proposal is considerably weaker than bills introduced in previous legislative sessions. “And the Democrats are trying to do the right thing. They just don’t have the numbers to move anything with substance.”

Andy Guy directs the Michigan Land Use Institute’s Great Lakes program. Reach him at aguy@mlui.org.

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