Oakland County board opposes water protection bill

Fears that proposed water protection legislation will limit the rights of homeowners and farmers led an Oakland County board to recommend a resolution opposing HB 5319, a bill that would declare water a public trust resource that must be managed for the benefit of all.

The goal of that bill, according to its primary sponsor Dan Scripps (D-Leland), is to make sure that corporations can’t buy land in Michigan and mine and export water for profit, damaging the ability of others to use the water.

This bill states, “The waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”

The surface waters of Michigan are already defined as public trust resources, and public trust protections should be extended to groundwater, bill advocates say, because groundwater and surface water are one single hydrologic system.

“A lake or stream, riparian rights, and public use where allowed under public trust doctrine or public access depends on integrity of flow and levels,“ said environmental attorney and public trust law expert Jim Olson. “People have only recently understood that groundwater is connected to surface water, that it recharges surface water.”

Olson said that HB 5319 is necessary because the Great Lakes compact, which banned out of basin diversion of water, contains a loophole that allows water to be exported in bottles. This loophole, he said, “established a ‘water for sale as product’ exception to the diversion ban, shifting historical common law as noted above to export of water as a recognized use, thus opening the door to NAFTA and trade law claims or challenges to Michigan’s right to restrict diversions or exports of water.”

The risk that corporations will take Michigan water has deepened, Olson says, with recent case law that “has been setting precedent that if it is economically beneficial water can be mined even if it harms the ecosystem.”

Public trust legislation is necessary to protect Michigan’s current and future water users against the increasing demands of a water scarce world, Olson said — in order to preserve your right to use the water, you must make sure the water isn’t taken away.

The resolution that passed the Oakland County committee on government last week with a 6-5 vote split along party lines, however, claims that the public trust legislation would interfere with traditional uses of water, and would limit the ability of lakeside homeowners to use water.

It states: “HB 5319 is attempting to quietly strip away these property rights without landowner compensation and poses a dangerous threat to the economic prosperity of the State of Michigan and Oakland County.”

Kim Capello represents Novi as a Republican and voted in support of the resolution against public trust legislation.

Capello said that as an attorney he has worked on water rights issues and that he feels that current law governing water use is fair to landowners and others.

What if a multinational corporation came in, bought some land and started using a tremendous amount of water?

“I don’t have a problem if that type of use is regulated,” Capello said. “I would be in favor of a bill that might restrict a private company from affecting a family well for commercial use.”

Capello said that he signed on to the resolution against the public trust legislation because he was under the impression that the legislation would impact people who use wells or live on the water. He acknowledged that he had not read the proposed public trust legislation thoroughly.

Only one paragraph of the three paragraph bill was included in the packet provided to members of the General Government Committee before their meeting. That packet also contained sharp criticism of the bill by the Mackinac Center for Public Policy.

Capello said that he intends to reread information about the Scripps legislation before the full meeting of the Oakland County Board of Commissioners where the resolution is scheduled to be taken up on April 20.

“We strongly urge the Board of Commissioner to reject those who want to turn Michigan’s waters over to corporate interests so, like our jobs, water can be outsourced in unlimited amounts to China and other places,” said Cyndi Roper, of Michigan Clean Water Action. “This is wrong, the people of Oakland County and Michigan know it’s wrong, and we hope their elected officials get the message and keep this resolution from being passed by the full board.”

Meanwhile, Dan Scripps has introduced additional legislation that he hopes will calm fears that residential well users will be subject to new fees. HB 6050, introduced April 15, specifies that “the state or a local unit of government shall not impose any taxes or fees on water withdrawals from water wells on residential property.”

Language to spell out protections for the use of water by farmers is also being considered for introduction by some members of the House.