Legal Loopholes
The Perrier Group and the DEQ assert the company’s water bottling operation is no different from other food and beverage manufacturing operations that use state water in their products. But citizens and lawmakers are questioning that in a world where water scarcity is driving entrepreneurs to search for places to privatize and exploit public water resources. The objective of such businesses is not to sell a new brand of beverage but to capitalize on the basic human need for water.

Citizens and lawmakers are also debating whether the typical ìriparian rights” that property owners have to use water on their land applies to the Perrier Group’s proposed transfer of water out of its natural basin. Common law gives property owners ìreasonable” use of water that lies on or under their land and to which the state of Michigan holds title. Common law does not, however, grant such ìriparian” landowners the right to move water out of its rightful basin. In addition, legal ìpublic trust” principles require the state to keep the public’s interest in such natural resources as water paramount to private uses. Under public trust principles, the Perrier Group must show that its water diversion proposal satisfies some public interest, not simply its own business plan.

Transferring water out of its basin, therefore, without express authorization from the Michigan Legislature and application of public trust principles amounts to privatization of public water resources. Privatization puts a retail price tag on water, a vital natural resource that democracies have sought — through stewardship, tax revenues, and common law ó to keep clean and available to all. Privatization turns a ìpublic” good, such as pure water, into a ìtradable” good, or commodity, that companies can sell for a profit without concern for the public interest.

Authorization Required
The Perrier Group’s bottling operation will privatize the spring water that flows from a central Michigan aquifer into the Muskegon River system and out to Lake Michigan. It will do so because the well drilling permit the DEQ granted the company essentially forfeits, without full public consideration, the state’s broader interest in and control of that water.

Most other bottled water in Michigan comes from municipal water supplies. The bottler pays a fee for water service to the municipality, which the Legislature has specifically authorized to tap and use the state’s water. In the Perrier Group’s case, the DEQ has given the company a permit to drill wells to bottle spring water as if it were a municipality. But the Perrier Group is not a municipality, and the people of Michigan have not given the Perrier Group express authorization to export and sell the state’s water.

The Perrier Group and the DEQ claim such authorization is not legally required or necessary. Citizens counter that state authorization is not only necessary legally but critical to future public control of the state’s water resources. International trade agreements are already moving in the direction of redefining pure public water as a tradable good. Michigan’s water will be at the mercy of those agreements unless state lawmakers subject it to public trust principles and establish unbiased, uniform standards for water uses.

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