Special Report

II. WHO’S WATCHING WATER SUPPLIES?

Both common law and the public trust doctrine charge the state with evaluating the reasonableness of private water uses, how private water uses affect the public, and whether the benefits and costs that a private user claims are legitimate. That’s an especially large challenge in Michigan, where scientific understanding of the state’s hydrology is lacking and where existing water laws relate primarily to water quality, not to quantity or to the interconnectedness of water resources.

Sound Science

Michigan, along with other Great Lakes states, needs to learn more about its water cycles and groundwater systems if it hopes to understand how various users ó from suburban golf courses to industrial agriculture ó can affect water availability. The Great Lakes region suffers from a ìserious lack of information” about its underground hydrology, according to the International Joint Commission, a research and policy organization created in 1909 by the U.S. and Canada.

Groundwater Flows
Groundwater is much more important to the inner workings of the Great Lakes than policy makers generally recognize, according to the U.S. Geologic Survey. Approximately 80 percent of the water flowing into Lake Michigan, for instance, comes straight from groundwater discharge near the shore or indirectly from rivers and lakes that groundwater aquifers supply.
Rain and snow are the only sources of replenishment for the groundwater system. Precipitation seeps into the subsurface and, once underground, migrates slowly through layers of rock, sand, and gravel called aquifers. Groundwater in aquifers sustains wetlands and forests in times of drought and connects an elaborate web of surface lakes, rivers, and streams.
Withdrawals from aquifers reduce the amount of groundwater that enters surface lakes and rivers and, therefore, divert water that naturally would flow to the Great Lakes, according to the USGS. Water withdrawals can lead to chronic, long-term shortages if they exceed the rate at which rain and snow can “recharge” aquifers. The recharge rate of the Great Lakes is less than 1 percent per year, according to the International Joint Commission.
Globally, groundwater supplies have proven particularly vulnerable to growing human demand. Overpumping of underground aquifers in China, the Middle East, India, and the U.S. now exceeds 160 billion tons per year, according to the Worldwatch Institute. Groundwater levels continue to decline in the Chicago metropolitan area, for example, because of large-scale pumping. Some experts believe groundwater depletion is the single most serious problem in the field of water resource management today.
Modernizing Michigan law to adequately protect water supplies will require a new appreciation of the broader public interest in groundwater resources and a more complete understanding of hydrological systems — how groundwater and surface water interact.

The Commission recommends that Great Lakes states determine the extent of groundwater availability, how much is used, whether a surplus exists, and how groundwater moves and in what direction. At the very least, the Commission finds, accurate mapping of underground aquifers could improve management of groundwater withdrawals.

Natural Resources and Environmental Protection Act

It’s also difficult for state regulators to assess and monitor the hydrological effects of water withdrawals when existing water laws ignore the issue.

Comprehensive water protection was certainly the intention of the authors of Michigan’s Constitution, which declares the state’s air, water, and natural resources as paramount concerns. The Legislature made this declaration law when it passed the Michigan Environmental Protection Act. Yet a close reading of Michigan’s broader Natural Resources and Environmental Protection Act, or NREPA (Act 451 of 1994), reveals large legal gaps.

NREPA encompasses the original Michigan Environmen-tal Protection Act, but it concentrates the state’s regulatory oversight on water quality, not quantity or interconnectedness. The parts of NREPA that apply are:

ï Part 31, Water Resources Protection ó Michigan’s primary statute for controlling water pollution.

ï Part 201, Environmental Response ó the state’s legal framework for responding to environmental contamination sites.

ï Part 87, Groundwater and Freshwater Protection ó for public health risks from pesticide and fertilizer contamination of groundwater.

ï Also related to water quality are statutes for underground storage tanks (Parts 211, 213, and 215), solid waste management (Part 115), hazardous waste management (Part 111), pesticide control (Part 83), and rules for recycling used oil (Part 165).

The Groundwater Supply Section of the Department of Environmental Quality manages the development of high-capacity groundwater wells, but preserving groundwater quantity is not part of its duties. The section’s responsibilities include monitoring groundwater quality; coordinating wellhead protection activities; regulating well construction, operation, and abandonment activities; and safeguarding public health by insuring that aquifers are isolated from pollution. This failure to manage water supply leads to a lack of information and control. Large-scale well operators are generally not required, for example, to report withdrawal and consumption rates despite potential dangers to neighboring wells and the local ecosystem.