When Michigan approved the Great Lakes compact earlier this month, it also made significant and innovate reforms to its state water withdrawal law. These reforms build on Michigan’s 2006 water withdrawal law that for the first time imposed permits and other regulatory requirements on large water withdrawals in the state. The 2008 amendments, signed into law as Public Acts 179-190, strengthen the Michigan law by expanding the permit system and creating an assessment process to determine whether a proposed withdrawal may cause an adverse resource impact to river systems. Key provisions of the Michigan law include:
- Requiring permits for all new or increased withdrawals over 2 million gallons per day from any source, including the Great Lakes, inlands lakes and rivers, and groundwater (Mich. Comp. Laws § 324.32723(1)(a)-(b));
- Permitting these withdrawals only if they meet the compact standard and do not violate public or private rights and limitations imposed by Michigan water law or other Michigan common law duties (MCL § 324.32723(6));
- Ensuring adequate public participation by providing public notification of any water withdrawal application and a public comment periodof at least 45 days (MCL § 324.32723(4)); and
- Continuing stricter regulatory protections for bottled water withdrawals and lowering the threshold for permits for bottled water withdrawals to 200,000 gpd (MCL § 325.1017(3)-(6)).
The most innovative aspect of the 2008 law is the development of a water withdrawal assessment process that determines the impact of a specific withdrawal on river systems by calculating the effect of the stream flow reduction on fish populations. The assessment process helps potential users and the state ascertain whether a new or increased “large quantity withdrawal” (defined by MCL § 324.32701(1)(aa) as a withdrawal over 100,000 gpd averaged over a 30-day period) from streams, rivers, or groundwater is prohibited because it causes an adverse resource impact (MCL § 324.32721(1)). For each type of affected stream or river, withdrawals are divided into four zones (zones A through D defined by MCL § 324.32701(1)(TT)-(WW)). Withdrawals in Zone D have such severe effects on the density or abundance of fish populations that they are likely to cause a prohibited impact, while withdrawals in Zones A and B are afforded the rebuttable presumption that they are not likely to cause a prohibited impact (see MCL §§ 324.32701(1)(TT)-(WW) and 324.32722(2)). The assessment process was developed by the Michigan Groundwater Conservation Advisory Council pursuant to the 2006 legislation with significant assistance from some of the state’s leading aquatic ecologists.
While a permit is only required for withdrawals over 2 million gpd, by July 2009 all new proposed large quantity withdrawals (with exceptions for residential properties) from streams, rivers, or groundwater must determine the zone of the withdrawal using the assessment model, which will be publicly available on the MDEQ website (MCL § 324.32706b(1)). Once the water user enters data on the withdrawal – such as the capacity of the equipment, the location of the withdrawal, and the amount and rate of water to be withdrawn – the web-based tool provides an immediate determination (MCL § 324.32706a(3)-(4)). For most withdrawals initially determined to be in Zones A and B, the water user may proceed immediately after registering the water withdrawal with the MDEQ (MCL § 324.32706b(3)). However, withdrawals initially determined to be in Zones C and D must undergo a site-specific review by the MDEQ (MCL § 324.32706b(4)). This second level of assessment, to be completed within ten working days, allows the MDEQ to consider additional information (such as return flow) that might alter the outcome of the model (MCL § 324.32706c(1)-(3)). Depending on the size of the withdrawal and the final determination of the Zone, the water user may be required to obtain a permit even if the withdrawal is under 2 million gpd (MCL § 324.32706c(5)-(6)). It should also be noted that the assessment tool does not apply to withdrawals from lakes or ponds, which are only subject to registration and reporting (pursuant to MCL § 324.32705(1)) unless they are over 2 million gpd.
Some environmental groups sought special provisions to extend the public trust doctrine to non-navigable waters and groundwater, a significant change in Michigan law (see my written testimony for a detailed analysis and modest proposal on groundwater and the public trust doctrine). These environmental groups were unable to persuade the legislature to make a major change to public and private groundwater rights, as the final law maintains the status quo by providing that it “shall not be construed to affect common law water rights or property rights; the applicability of other environmental laws; or limit any rights or interest of the State as sovereign” (MCL § 324.32728(1)).
Despite the disappointment of some environmental groups that the law does not expand public rights to groundwater, most major national, regional, and state groups supported the final legislation. They were joined by a long list of water users from every sector. The broad support for the final legislation was due to the leadership of two Michigan lawmakers throughout the process, Republican Senator Patty Birkholz (chair of the Senate Natural Resources and Environmental Affairs Committee) and Democratic Representative Rebekah Warren (chair of the House Great Lakes and Environment Committee). Thanks to their leadership, Michigan and the Great Lakes will benefit from the new law.
Special thanks to Sara Gosman, an attorney with the National Wildlife Federation who was involved in the legislative process, for her help with this post.
