Special Report

Public Trust Doctrine

When Michigan became a state, the federal government granted its citizens title to the bottomlands and waters of its Great Lakes, including interconnected groundwater and surface water. Under public trust principles, the state is obligated to protect those waters for citizens ó for their legal rights to enjoy water for basic needs and for fishing, swimming, and recreation. The public’s interest in the state’s water resources is paramount. Private uses cannot diminish, impair, or subordinate the public’s interests.

Public trust standards specify that no private use of the state’s natural resources is allowable unless the user can demonstrate that a) a surplus of that resource exists b) the public interest in the project is substantial and c) no damages to others will result. Then, only if no damages are possible, the applicant also must prove the project’s benefits and pay royalties.

Public trust standards are challenging for good reason: The value of natural resources to the public is infinitely greater than their value to a private entrepreneur. Any action to alter or diminish them should pass the tests of surplus, public interest, and no harm.

State Water Rights Law

ìReasonable use” is a key issue for Michigan lawmakers to consider when evaluating the Perrier Group’s plan under common law.

In Michigan, a landowner’s right to take groundwater for use on or off site is bound by the rights of other landowners; that is, a landowner’s use of groundwater cannot harm his neighbors’ rights or the community unreasonably. This explanation of basic groundwater rights in Michigan comes from a history of state court decisions on English common law.

Likewise, spring water, which the Perrier Group will tap, falls under common law’s ìreasonable use” rules. Hydrologically, springs are parts of the streams and lakes they feed into and, therefore, fall under common law’s ìriparian” water rights. Riparian water rights require upstream water users to be reasonable ó to respect the rights of downstream water users and the public’s interest in safe, clean, plentiful water. A basic tenant of common law’s riparian system is that water users cannot take water from one basin and use it elsewhere.

Riparian rights are the basis of most water law in the eastern part of the United States. In contrast, water law in most Western states is based on the doctrine of ìprior appropriation.” Under the doctrine, the first to officially obtain, or appropriate, water ó regardless of whether that is a riparian land owner ó retains a priority right over all later users. In times of drought, for example, senior rights holders meet their needs first. Rights holders, however, must continue to use the water or risk forfeiting their rights. Two slogans best summarize the characteristics of prior appropriation: ìFirst in time, first in right” and ìUse it or lose it.”

For-profit transfer of water out of its basin is legal under the ìprior appropriation” doctrine. In California, for example, a struggling corporate fruit farm recently sold to Los Angeles its rights to 47 trillion gallons of groundwater per year beneath the Mojave Desert. Los Angeles leaders were eager to gain access to a new water supply after a federal court cut the state’s allowance of water from the Colorado River.

Some western states, including Texas, Oregon, and Washington, have developed ways to allocate water rights that borrow elements from both the prior appropriation doctrine and the riparian doctrine. Similarly, rising population and water scarcity have prompted some eastern states to develop ìregulated riparian” systems that give preference to certain uses, control others, and require permits for large withdrawals and the movement or sale of water.