To the Members of the Oakland County Board of Commissioners, I write today to implore you to vote in opposition to the adoption of Miscellaneous Resolution #10047. To give you a bit of background, I feel I should let you know that while I am no longer an Oakland County resident, up until a few short months ago my family and I were residents of the city of Huntington Woods, where I was a member of the city's Environmental Advisory Board. At that time I practiced with the law firm of Frank, Haron, Weiner & Navarro, PLC in Troy, while also maintaining an active membership in the Oakland County Bar Association. I am now practicing in Traverse City with the law firm of Olson, Bzdok & Howard, PC, and I specialize in environmental law. I have written on the topic of water law in Michigan (in the Michigan Real Property Review, Winter 2006, Vol. 33, No. 4), as well as the potential impacts of NAFTA on large-scale water withdrawals from the Great Lakes basin. I am quite familiar with the subject matter surrounding Resolution #10047, as well as the underlying state bill, House Bill 5319. As both an attorney, and a concerned citizen, I must say that, while I appreciate the sentiment MR#10047 appears to promote in attempting to ensure that the rights of private property owners are not infringed by any changes in state law, this resolution fundamentally misunderstands both the state of water law in Michigan, as well as the impact that HB 5319 would have on this area of the law. HB 5319, was introduced by Rep. Dan Scripps (of Leland), and the full text is available for your review here: http://www.legislature.mi.gov/documents/2009-2010/billintroduced/House/pdf/2009-HIB-5319.pdf As you can see, there are three sections to this short piece of legislation. Section 1 is akin to a legislative finding, and simply reiterates that "conservation and development" of Michigan's natural resources "are of paramount public concern", and that the protection of these resources from pollution, impairment and destruction is important based on their impacts on the health, safety and welfare of Michigan's citizens. Section 2, the primary provision in the bill, is a formal, legislative recognition of the applicability of the "Public Trust Doctrine" to groundwater in Michigan. The text reads, in full, as follows: "(2) 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." Finally, Section 3 of the bill relates to enforcement of the public trust protection by the Attorney General or any other person. This is a simple, straight-forward bill, designed to accomplish a modest purpose. The Public Trust Doctrine itself was perhaps best described by the Michigan Supreme Court in the matter of Collins v Gerhardt, 237 Mich 38, 49 (1926): “So long as the water flows and fish swim in [the river], the people may fish at their pleasure in any part of the stream subject only to the restraints and regulations imposed by the state. In this right they are protected by a high, solemn and perpetual trust, which it is the duty of the State to forever maintain.” The public trust in surface waters and their accompanying lake bottoms are already recognized in several provisions of Michigan law (See e.g., Article IX, Sec. 40 of the Michigan Constitution of 1963; MCL 324.30111; 324.32502; 324.32505, etc.), and the Great Lakes - St. Lawrence River Basin Water Resources Compact (codified at MCL 324.34201) also explicitly recognizes that "the Waters of the Basin are precious natural resources shared and held in trust by the states." However, current law contains no explicit extension of this doctrine to groundwater, primarily due to the fact that our state's hydrology was not, until relatively recently, fully understood. As such, it is the goal of HB 5319 to simply codify what is already a hydrologic truth, which is that surface waters are directly connected to groundwater. As such, the statutes of the state which is defined largely by its unparalleled and ubiquitous bodies of water should reflect the true hydrology of the state. Having considered the foregoing, it is with great dismay that I read the proposed MR#10047, because, in my opinion, it mischaracterizes both the public trust doctrine and water law in Michigan. For instance, the second, fifth, and eighth "whereas" clauses are, at best, misstatements of the law in Michigan and the text of HB5319, and, at worst, are unfortunate, deliberate attempts to mislead Commissioners and the public as to the public trust doctrine. Michigan law affords real property owners who have riparian rights to a stream or lake, or who have a well on their property which accesses an underground source of water, the right to the reasonable use of said waters. There is nothing in HB 5319 will change these rights, and certainly nothing that would “repeal” any right of property owners to make reasonable use of water to which they have access. Recognition of the public trust in groundwater will not affect anyone’s right to the reasonable use of any of the water connected to their property. In fact, it will actually better protect the rights of Michigan’s citizens whose waterways are currently under threat of excessive and unreasonable exploitation by outside interests. Without public trust protection, excessive groundwater withdrawals (those which exceed the “reasonable use” standard in Michigan law) could have a severely detrimental impact on any connected surface waters, and homeowners, agricultural interests, industry, and municipalities could all feel these negative effects. Furthermore, there is nothing in HB 5319 which speaks to permit requirements being placed upon landowners, contrary to the statement in the third “whereas” clause of MR#10047. The current permitting requirements which are already in place (under MCL 324.32723, for example), and are applicable to those expecting to withdraw or transfer from basin to basin hundreds of thousands of gallons of water per day. If someone is not currently required to obtain a permit for their residential well or other use (See MCL 324.32705 & 324.32723(13)), there is nothing in HB 5319 which would change that. I apologize for the lengthy discourse, but I felt it important in order to place the proposed legislation and proposed resolution in the proper context. I hope you will see that several of the statements in MR#10047 characterizing HB5319 are simply untrue, and that, as such, MR#10047 is not worthy of your support. I know that all of us throughout this great state want to ensure that we can enjoy our waters and other natural resources, while also maintaining the right to put them to productive use. I am thankful that Michigan law currently allows for and protects those rights, and am encouraged that some in the state legislature have seen fit to propose legislation that would amend state law to reflect the true nature of the hydrology of the state, which is that surface and ground water are inextricably linked. Thank you very much for your time and consideration of my thoughts and concerns. I know that I am no longer an Oakland County constituent, but I hope you will take this letter and the analysis contained herein to heart prior to your vote on MR #10047. Again, I humbly ask you to oppose this significantly flawed resolution. All the best to you and yours. Sincerely, ross_hammersley@hotmail.com *The thoughts and views expressed herein are my own, and have not been solicited or requested in any way by my employer or any group with an interest in the pending legislation and resolutions analyzed herein. |