Great Lakes Law

Michigan Supreme Court will decide if townships are responsible for building sewer systems to control water pollution

The following guest post is by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center and director of Wayne Law’s Transnational Environmental Law Clinic.

On Wednesday November 9, 2011 the Michigan Supreme Court will hear oral argument in the case Michigan Department of Environmental Quality v. Township of Worth (S. Ct. Docket No. 141810).  Worth Township is located in a picturesque region of Michigan on the shore of Lake Huron. A popular vacation destination, it is home to many small plots of land with cottages and homes along the Lake. The township developed without its own public sewerage system and residents installed their own private septic tanks. The existing system of private, individual septic tanks on small, dense plots of land is not sustainable, and many of the septic tanks are failing, contaminating Lake Huron with raw sewage discharges.

The Michigan Department of Environmental Quality (DEQ), in an attempt to resolve the issue, has been working with Worth Township for several years. In 2004, the township signed a district compliance agreement with the DEQ in which it agreed to construct a public sewerage system. After the township failed to uphold this agreement, DEQ sued the township in Circuit Court, requesting injunctive relief to force the township to construct the sewerage system. The Circuit Court held in favor of the DEQ, the township appealed and the Court of Appeals held in favor of the township, and the DEQ was granted leave to the Michigan Supreme Court.

The Great Lakes Environmental Law Center has filed an amicus curiae brief in support of the DEQ’s position. We argue that, under the Natural Resources and Environmental Protection Act (NREPA), (1) Worth Township is responsible for the widespread failure of the private septic systems within its borders; (2) the DEQ has authority to order Worth Township to install a sewer system; and (3) the Circuit Court has authority to enforce the order.

Part 31 of NREPA prohibits the discharge of injurious substances into state waters.  Discharge of raw human sewage is prima facie evidence of a Part 31 violation by the municipality where the discharge originated. The septic systems within Worth Township’s borders are failing, causing sewage to discharge into Lake Huron. Therefore, the township is responsible for the discharge under NREPA. MCL 324.3109(2) creates a presumption that a municipality violates NREPA if raw sewage is discharged into state waters within municipal boundaries, even if the municipality does not directly own or operate the sewerage system. The Court of Appeals incorrectly applied this presumption as to whether the municipality owns or operates the source of the discharge.

Part 31 also grants the DEQ broad authority to “take all appropriate steps to prevent any pollution [it] considers to be unreasonable and against public interest in…any…waters of the state.” This authority includes the power to issue orders. The 2004 agreement between DEQ and Worth Township constitutes such an order.

Furthermore, the Circuit Court has injunctive authority to enforce the DEQ’s order. NREPA explicitly grants that authority. MCL 324.3115 states that the DEQ “may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation… or order issued[.]” Independently of NREPA, Michigan courts also have the power to force local governments to construct a public sewerage system. In People ex rel Stream Control Comm’n v. Port Huron, 9 N.W.2d 41 (1943), the Michigan Supreme Court held that it had common law injunctive authority to force the City of Port Huron to comply with a Department of Health order construct a public sewerage system.

As our amicus curiae brief demonstrates, Worth Township is responsible for the sewage discharge under NREPA, the DEQ has authority to order the township to construct a public sewerage system, and the Circuit Court has authority to compel enforcement with such an order. Special thanks to Wayne Law student Matthew Clark who worked on this project through the Transnational Environmental Law Clinic.

Ohio Supreme Court draws a dividing line on the scope of the public trust doctrine - Guest post by Professor Ken Kilbert

The Ohio Supreme Court this week issued its decision in State ex rel. Merrill v. Ohio Department of Natural Resources, holding that the public has no right to use the shore of Lake Erie above the “natural shoreline.” Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed the case closely and published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN). His previous Great Lakes Law guest posts analyzed the lower court’s decision and previewed the Supreme Court case based on oral arguments. Ken once again offers his insights and analysis of the Ohio Supreme Court’s decision.

The Ohio Supreme Court this week ruled that the public has no right to use the shore of Lake Erie above the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes. The Court in State ex rel. Merrill v. Ohio Department of Natural Resources also decided that same line represents the boundary between privately owned uplands and the state-owned lakebed.

The unanimous 7-0 decision is a blow to lakefront property owners because it reversed aspects of earlier decisions in this case by lower Ohio courts which had drawn the boundary line for purposes of the public trust and state ownership at the water’s edge as it exists moment to moment. However, the Court also rejected the argument advocated by other parties in the case, the State and two environmental groups, that the boundary should be the ordinary high water mark (OHWM). In the aftermath of the Court’s opinion, both sides in the case seem to be declaring victory.

While the Court explained that neither the water’s edge nor the OHWM is the boundary, the opinion did not explain where “the line at which water usually stands when free from disturbing causes” exists on the shore. Fleshing out the meaning of that phrase, and the location of the boundary line, apparently will be left to future court opinions and/or future Ohio Department of Natural Resources (ODNR) regulations.

The Merrill case was begun in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owned the shore up to the OHWM and the owners must obtain leases from the state for certain uses of the shore below the OHWM. (ODNR subsequently abandoned that position, leading the court of appeals to rule that the Ohio Attorney General lacked standing to pursue the appeal on behalf of the State, a ruling that the Supreme Court reversed.) Although the case began as a dispute over title, also at issue was the public’s right to use the Lake Erie shore. Pursuant to the public trust doctrine, the public has a right to use land and water within the public trust for certain important purposes, including boating and fishing. It is undisputed that Lake Erie and the lakebed are owned by the state and are subject to the public trust. The Merrill case involved questions of how far state ownership and the public trust extend up the Lake Erie shore and, secondarily, whether walking the shore is a protected use.

The Lake County Court of Common Pleas and the Ohio Court of Appeals for the 11th District had ruled that the public has no right to use the Lake Erie shore above the water’s edge; the public has a right to walk along the shore, but only to the extent they keep their feet wet by staying on state-owned lakebed (see this previous guest for more on the court of appeals decision). The Ohio Supreme Court did not expressly discuss the public’s right to walk along the shore, but it did hold that the territory held in trust by the state does not extend landward beyond the “natural shoreline” as it defined the term, meaning that the public has no right to use the privately owned shore above that natural shoreline. The Court held that the lakefront property owners have no title lakeward of that same natural shoreline.

Although the Court of Appeals had called the case one of “first impression,” the Supreme Court emphasized that its decision regarding the boundary of the public trust along the shore of Lake Erie was merely a reiteration of law settled in an 1878 Ohio Supreme Court case, which was clarified in a 1916 Court case and codified by a state statute in 1917.

The Merrill decision sharply contrasts with the 2005 decision by the Michigan Supreme Court in Glass v. Goeckel, which held that the public trust extends to the OHWM along the Michigan shores of the Great Lakes. The Glass Court ruled that the public has a right to walk along even privately owned shores up to the OHWM in Michigan.

I respectfully disagree with the Merrill opinion, at least regarding the public trust. The boundary of the public trust was not at issue in the 1878 case or any subsequent Ohio Supreme Court case, and Ohio Rev. Code §§ 1506.10 & .11 were not intended to modify the geographic scope of the public trust. Further, the Court erred in assuming that the boundary for title must be the same as the boundary for the public trust. Rather, in my view, the shores of Lake Erie passed to the State of Ohio up to the OHWM at the time Ohio became a state, and the State has never clearly relinquished the public trust in the shores of Lake Erie below the OHWM, so the public should have a right to walk along the Ohio shore of Lake Erie up to the OHWM. See Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN).

The Merrill case and its implications will be the topic of a panel discussion, featuring attorneys from both sides of the case, at the annual Great Lakes Water Conference on November 4 at the University of Toledo College of Law.

Alternative Strategies for managing pharmaceutical and personal care products in water resources – Guest Post by Gabriel Eckstein

The following guest post is by Gabriel Eckstein, a professor of law at Texas Wesleyan University. Prof. Eckstein is also the Director of the International Water Law Project and a Senior Fellow with the Texas Tech Center for Water Law & Policy. He and George William Sherk recently published an EPA-funded study entitled “Alternative Strategies for Managing Pharmaceutical and Personal Care Products in Water Resources.” The study is available on the Micropollutants Clearinghouse website, a great resource for data, articles, and reports about PPCPs in drinking water systems across the country.

What’s in your water? Researchers have known for more than 40 years that pharmaceuticals and personal care products (PPCPs) – such as antibiotics, prescription and over the counter drugs, steroids, reproductive hormones, fragrances, soaps, and thousands of other products – can end up in our drinking waters (see the Micropollutants Clearinghouse to view thousands of studies, articles, and reports about PPCPs in drinking water). Studies done over the past several decades have indicated that these contaminants can be found in both surface and ground waters throughout the United States (as well as most other countries). This has raised serious concerns stemming from the possibility that the presence of these PPCPs may pose a threat both to human and environmental health, either through direct exposure (e.g., contact with endocrine disrupting compounds) or indirect consequences (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment communities have been especially concerned over PPCPs because of their ubiquitous nature and ability to persist or only partially degrade in water or during the wastewater treatment process.

Sources of PPCPs include human & animal feces and urine, hospital/medical wastes, wastes from industrial and agricultural processes, pharmaceuticals and personal care products that are disposed of inappropriately, urban runoff, and leachate from landfills. These contaminants are rarely treated or removed in the wastewater treatment process and typically remain in waters discharged from wastewater treatment plants into receiving streams and lakes, as well as in solid and liquid wastes applied to lands designated as application sites.

What have we done about PPCPs in our water? Not much, though not because of a lack of effort. The legal system (at least in the United States) was never meant to deal with micropollutants on this scale. For example, while common law remedies like trespass, nuisance, negligence, and strict liability may be applicable to concerns over PPCPs in water supplies, they rely on litigation, an all-to-often expensive, time consuming, and very case-specific process. Moreover, success in litigation requires plaintiffs to prove causation – which manufacturer produced the PPCP involved in the suit, and which PPCPs resulted in the harm alleged in the suit – hurdles that may be difficult to overcome.

An alternative to common law remedies might be found under federal statutory regimes including the Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, Toxic Substance Control Act, and Endangered Species Act. While these strategies may be relevant and important, their implementation also can be expensive and politically complicated. Moreover, none of these schemes specifically address PPCPs and none are singularly applicable to (let alone capable of managing) the thousands of different pharmaceuticals and personal care products introduced into our water systems every year.

A more effective route for responding to PPCPs in drinking water supplies may be to focus on alternative strategies that focus on removing (or limiting the presence of) PPCPs at the source. In the case of pharmaceuticals, alternative strategies might include:

• Designing drugs and personal care products that minimize the human and animal excretion of wastes, which would then minimize the volume of PPCPs that enter the water system;
• Changing the delivery mechanisms by better informing doctors and patients about the effects of PPCPs on the environment, and educating doctors and other professionals on how to individualize or tailor doses to the individual user rather than prescribing the manufacturers’ recommended dose;
• Informing users on how to dispose of unused drugs and personal care products and producing a variety of package sizes to reduce the amount of unused drugs;
• Developing more disciplined dispensing and inventory control protocols to reduce disposal of unused drugs, such as through limits on Internet sales and tying drug dispensing of the necessary quantity to the drug’s expiration date (i.e., minimize drug expiration before the course of treatment is completed);
• Encouraging states or manufacturers of PPCPs to develop take-back arrangements and appropriate disposal/recycling programs; and
• Developing nutrition and health maintenance programs that reduce illness and the need for PPCPs, as well as the use of alternative products that do not contain PPCPs, such as probiotics.

The issue of PPCPs in water supplies is a complex problem that will require more than one simple solution. Yes, it will require monitoring and regulating the PPCPs that do enter the water supply, new monitoring, detection, and analysis methods, and new drinking water treatment processes. Yet, to successfully limit the presence of these contaminants in our drinking water, it will also require a reduction in the sources of PPCPs. This reduction will be achieved only through a combination of technological and industry fixes as well as regulatory and statutory mechanisms.

(Note: Another complimentary strategy to address this problem is being pursued by the Great Lakes Environmental Law Center. Working with NRDC, GLELC filed a petition last year with the Food and Drug Administration to close a regulatory loophole that allows pharmaceutical drugs to be approved without considering their impacts on drinking water. For more info, see this previous post.) 

Landmark public trust decision from the Wisconsin Supreme Court – Guest Post by Melissa Scanlan

The following guest post is by Melissa Scanlan, a legal expert who has spent over a decade working to protect the waters of her home state of Wisconsin. Much of her scholarship and advocacy has focused on the public trust doctrine and its role in state water management. For more info about Melissa, see her previous Great Lakes Law guest post.  

When Nestle-Perrier tried to set up a spring water pumping and bottling plant in Wisconsin in 2000, I was part of the legal team that argued the DNR had a duty under the public trust doctrine and Wis. Stat. § 281 to consider the impact pumping groundwater has on navigable waters. The DNR countered that it was limited by the high capacity well statute to only consider the impacts outlined in that statute, which did not include impacts to the nearby surface waters. Because my clients won the case on other grounds, the Wisconsin courts never resolved this legal question in a published decision.

That is, until July 6, 2011, when the Wisconsin Supreme Court decided in favor of upholding constitutionally-based public trust protections for navigable waters. 

The issue came before the court with different facts and different litigants than the Perrier case, arising out of a contested high-capacity well permit sought by the Village of East Troy near Lake Beulah. In Lake Beulah Management Dist., et. al. v. Wisconsin DNR, et. al., 2011 WI 54 (Wis. 2011), the DNR argued that it did have a duty to consider impacts to surface waters when issuing a high capacity groundwater well permit, based on the public trust doctrine and its general duty to protect all waters of the state in Wis. Stat. § 281.11 and § 281.12.

In its published opinion, the Supreme Court begins its legal analysis by underscoring that the public trust doctrine is a “fundamental tenet” of Wisconsin’s Constitution that should be broadly construed to protect public rights in navigable waters. “This court has long confirmed the ongoing strength and vitality of the State’s duty under the public trust doctrine to protect our valuable water resources.” The Court emphasized the legislature’s express delegation of authority to the DNR to carry out the “state’s affirmative obligations as trustee of the navigable waters….” (Lake Beulah Management Dist. ¶30-33.)

The Court concluded that the legislature accomplished this delegation through Wis. Stat. § 281.11 and § 281.12. In pertinent part, those statutes require that the DNR “shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private.” The legislature empowered the DNR to enact a “comprehensive action program directed at all present and potential sources of water pollution . . . to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water.” And, finally, the legislature expressly conferred on the DNR “necessary powers” to organize a “comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private.”

Rather than read the high capacity well statute in isolation and in a manner that put on blinders to the potential impact on the state’s public trust waters, the court held that the DNR has “the authority and a general duty to consider potential environmental harm to waters of the state when reviewing a high capacity well permit application.” (Lake Beulah Management Dist. ¶44.)

However, the duty is not one that requires the DNR to initiate a scientific investigation of environmental impacts on every high capacity well permit. Rather, the DNR “must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.” (Lake Beulah Management Dist. ¶4, 46.)  In this case, the Court held, due to an apparent misfiling of a scientific affidavit, which resulted in it not being part of the administrative record, that the duty had not been triggered. (See id. ¶6.) 

Yet, the Wisconsin Supreme Court delivered a resounding message in support of sound management of Wisconsin water resources that integrates surface and groundwater. This is good news for Wisconsin families, businesses, homeowners, and sportspeople who rely on water for their livelihood and quality of life.

Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes-St. Lawrence River Basin Water Resources Compact – Guest Post by Jeff Dornbos

This is the second of two guest posts by Jeffrey Dornbos, an attorney with Warner Norcross & Judd in Holland, Michigan. In addition to his legal background, Jeff also taught environmental science, holds a captain’s license from the U.S. Coast Guard, and is a SCUBA diver. Jeff’s guest posts introduce his two excellent law review articles focusing on management of transboundary water resources – “Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes-St. Lawrence River Basin Water Resources Compact,” 60 Case W. Res. L. Rev. 1211 (2010) and “All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes,” 22 Fordham Envtl. L. Rev. 1 (2011).

“Whiskey is for drinking and water is for fighting over.” In my mind, this quote (mythically attributed to Mark Twain) conjures up images of tumbleweed blowing down the dusty streets of a town in then Old West, not the vast expanse of the Great Lakes basin. The ongoing debate over the so-called “bottled-water loophole” in the Great Lakes compact, however, demonstrates that the wisdom also applies east of the Mississippi. 

The “bottled-water loophole” results from the Great Lakes Compact’s ban on diverting water out of the Great Lakes basin in containers that are greater than 5.7 gallons (such as a tanker) but leaving it to individual states to decide whether to ban diverting water out of the basin in smaller containers (such as bottles). Debate over the loophole has centered on whether the disparate treatment is required under international agreements, such as GATT and NAFTA, and whether giving states discretion over smaller containers could possibly result in depleting the lakes, one bottle at a time. (These debates have been discussed in previous Great Lakes Law posts.) 

The debate, however, cannot be resolved without addressing another loophole in the compact, a loophole I call the “information loophole.” As described in my article, Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes—St. Lawrence River Basin Water Resources Compact, 60 Case W. Res. L. Rev. 1211 (2010), this loophole results in part from the decision to treat larger containers (more than 5.7 gallons) differently than smaller containers (5.7 gallons or less). Specifically, users must report to their respective state any time they remove water from the basin in the larger containers, but individual states can decide whether to require reporting when water is taken out in smaller containers (if the user withdraws less than 100,000 gallons/day).

The problem is exacerbated by the fact that users are required to report estimates to their various states, and the estimates are often based on inaccurate coefficients that vary across jurisdictions, especially when trying to determine the amount of water that is used consumptively. Even the water use that is reported is only required to be publicly reported in the aggregate. These compact requirements are inadequate to address the concerns expressed by the Great Lakes Commission that accurate withdrawal data is “lacking for all water use categories for all jurisdictions” because “reporting consistency varies widely and withdrawal data is mostly estimated.”

Better information would help determine whether exporting water in smaller containers actually presents a threat to the Great Lakes basin. In addition, improved information would be useful for determining whether the disparate treatment complies with NAFTA and GATT, or if an exception applies. Currently, the lack of accurate information about water use within the basin weakens arguments on both sides and prevents resolution of the debate. Returning to the analogy of the Old West, it’s a little like showing up to a shootout at high noon with no bullets – both sides keep pointing at each other and pulling the trigger, but nothing much gets resolved.

Michigan Supreme Court vacates Anglers of the AuSable decision, reversing a legal victory for environmentalists

In a sharply divided opinion, the Michigan Supreme Court today vacated its prior decision in Anglers of the AuSable v Michigan Department of Environmental Quality and Merit Energy Company (793 NW2d 596). The original decision was released in December 2010 and was a huge victory for environmentalists. It opened the door to citizen suits against the state under the Michigan Environmental Protection Act and held that diverting contaminated water from one river to another is unlawful.

However, the December 2010 decision was authored by then-Justice Alton Davis, who had already lost the November election and was essentially a lame duck for the liberal majority before the new justices took their seats. At the time, many observers (myself included) expected the decision to be vacated once the new majority took over, which is exactly what happened. (See this previous post for more info on the now-vacated December 2010 decision.)

By a 4-3 vote, the new conservative majority led by Chief Justice Young vacated the Supreme Court’s December 2010 decision and the court of appeals decision from 2009 (770 NW2d 359). As detailed in its opinion, the Court reasoned that the case was clearly moot, since the defendant Merit Energy gave up on the proposal and no longer sought to discharge the pollution at issue. This view is consistent with the dissent of then-Justice (now Chief Justice) Young in the December 2010 decision. As is typical for the Michigan Supreme Court, the opinion includes a harsh dissent (written by the liberal minority) and several concurring opinions, each accusing the other of hypocrisy and inconsistency in respecting precedent. 

After getting through the divisive court politics and arguments over mootness, the bottom line is that  the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) is now restored, after having been overruled in the December 2010 decision. Preserve the Dunes cast doubt on the ability of citizens to bring a Michigan Environmental Protection Act (MEPA) suit against the state for permitting pollution by private parties, and now that uncertainty remains.

The December 2010 decision was also a big win for environmentalists on the issue of standing, which gives a party the right to have its claims heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447) adopted a far more restrictive test for citizens. This precedent was overruled by the December 2010 Anglers of the AuSable decision, which is now vacated. Confused? Don’t worry about it – the issue of standing in Michigan courts was conclusively addressed in the Supreme Court’s 2010 decision in Lansing Schools Education Association v Lansing Board of Education (792 NW2d 686), which also overruled Michigan Citizens for Water Conservation. So vacating the Anglers of the AuSable decision will not reverse the environmentalists’ victory on standing.

My take is that Chief Justice Young was probably correct to raise mootness as a concern last year, and perhaps the appeal should never have been heard. On the other hand, there is still considerable uncertainty about the scope and implications of the Preserve the Dunes decision, leaving citizens unsure of their legal options to challenge state permitted pollution. One way or another, attorneys, businesses, and citizens in Michigan need clarification and certainty in this area of law. Instead, we got another politically divided opinion that may only last until the next election.

Update: Great coverage of the decision by Steve Kellman on Circle of Blue

Interstate Water Compacts and Climate Change Adaptation

I’ve just published a new article – “Interstate Water Compacts and Climate Change Adaptation” in the Environmental & Energy Law & Policy Journal.  As the name suggests, the article looks at the major interstate water compacts in light of expected climate change impacts on water resources. The article may also be a useful resource for water policy wonks, as it includes short summaries of every interstate water allocation compact (27 in all) and brief analyses of climate change vulnerability for the respective interstate watersheds. The full article is available free online, the citation is Noah D. Hall, “Interstate Water Compacts and Climate Change Adaptation,” 5 Envtl. & Energy L. & Pol’y J. 237 (2010), and here is the abstract:

Over 95% of the available surface freshwater resources in the United States are interstate in nature and governed by interstate water compacts. These interstate compacts vary tremendously in how they allocate and manage interstate waters. Until recently, the water resources governed by interstate compacts have been relatively stable and unaffected by drastic changes in long-term weather patterns. However, within the next few decades North America is expected to experience increased regional variability in precipitation and susceptibility to drought. This article first looks at these expected changes on a macro and regional level to evaluate the increased stress on water resources that is expected to arise in some watershed. Interstate compacts may be the most important legal consideration in assessing water supply risks from climate change, and this article provides a critical evaluation of every interstate water compact: how it works, the resources it governs, and the rights and responsibilities it assigns to the party states. The article then assesses the relative risk and legal uncertainty resulting from climate change for interstate water resources subject to interstate compacts. The article concludes with a comparative assessment of the watersheds most at risk from climate change and the interstate compacts most able to adapt to climate change.

Ohio Supreme Court hears oral arguments in Great Lakes shoreline ownership case - guest post by Prof. Ken Kilbert

The Ohio Supreme Court earlier this month heard oral arguments in State ex rel. Merrill v. Ohio Department of Natural Resources, in which two lower courts have ruled that the public has no right to use the shore of Lake Erie above the water’s edge. Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and wrote about the lower court decision in a previous guest post. Professor Kilbert has published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN) and previews the case looking at the recent oral arguments. 

It is undisputed that the State of Ohio owns the bed of Lake Erie in trust for the public to use. Hotly disputed in State ex rel. Merrill v. Ohio Department of Natural Resources, however, is both the public’s right to use the shore of Lake Erie and the proper boundary between the state-owned bed and the privately owned uplands. In 2009, the Ohio Court of Appeals for the 11th District affirmed a Lake County Common Pleas Court decision holding that the water’s edge – as it exists moment to moment – serves as the boundary between privately owned lakefront property and the state-owned lakebed, and that lakefront owners can exclude the public from the privately owned shore above the water’s edge. These Ohio lower court opinions contrast sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords the public a right to walk along even privately owned shores of the Great Lakes up to the ordinary high water mark (OHWM). The dispute was precipitated by the Ohio Department of Natural Resources (ODNR) claiming state ownership of the shore below the OHWM, and the courts held that lakefront owners can use the property down to the water’s edge without the need to obtain leases from ODNR.

Three attorneys argued before the Ohio Supreme Court in Merrill on Feb. 1. Stephen Carney, on behalf of the Attorney General of Ohio, argued in favor of a boundary at the OHWM: above the OHWM is privately owned, below the OHWM is owned by the state, and the public has the right to boat, fish and walk up to the OHWM pursuant to the public trust doctrine. Many of the justices’ questions to Mr. Carney focused on another issue – the Attorney General’s standing to pursue the case after ODNR abandoned its original position requiring lakefront owners to obtain leases for uses below the OHWM. Irrespective of how the standing issue is resolved, the Court should reach the merits of the case because intervenors Ohio Environmental Council and National Wildlife Federation (which ceded their oral argument time to the State) also appealed.

Attorney Homer Taft, himself a lakefront owner, urged that the boundary between state-owned lakebed and privately owned upland is the ordinary low water mark. The public trust doctrine, according to Mr. Taft, gives the public the right to use the waters of Lake Erie but not the beds above the low water mark. Attorney James Lang, counsel for the lakefront owners group, essentially asked the Court to affirm the lower court decisions setting the boundary for ownership and the public trust doctrine as the water’s edge. In addition to the parties’ briefs and oral arguments, the Court received at least a dozen amicus briefs on behalf of more than 30 interested persons and entities.

I learned long ago that it is foolhardy to predict how an appeal will be decided, especially based on the oral arguments. So I will close by offering my own view of what the law should be regarding the Ohio shore of Lake Erie. Pursuant to the equal footing and public trust doctrines, the State of Ohio acquired the land underlying Lake Erie up to the OHWM when it joined the United States and continues to hold that land in trust for the public to use for boating, fishing and other protected uses. Even if the State somehow relinquished title of the shore from the OHWM down to the water’s edge (I disagree), the state legislature has not relinquished the public trust in the shore below the OHWM. Therefore, the public should have the right to walk along the shore of Lake Erie in Ohio up to the OHWM, just as the public does along the shores of the Great Lakes in Michigan. For more analysis, see Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604025.

Michigan Supreme Court rules that citizens have the right to sue state agencies for issuing permits, and that diverting contaminated water from one river to another is unlawful

Just before the end of the calendar year, the Michigan Supreme Court has issued a sharply divided decision in Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The majority’s decision is a huge legal victory for Anglers of the AuSable and other environmental groups on several very important state law issues. However, the decision was authored by Justice Alton Davis, a Democrat who was not reelected last month, when Republican-nominated candidates and Justices won all open seats on the Michigan Supreme Court. Thus, the decision comes right before a major change in the Court’s balance and composition as a result of the 2010 elections, and with the dissenting justices set to regain the majority next week, it’s not clear how lasting the Anglers of the AuSable victory will prove to be for environmentalists.

The case involves a dispute over a deal Merit Energy reached with the state to remediate groundwater contamination and discharge over one million gallons per day of water (which originates in the Manistee River watershed) into Kolke Creek and the AuSable River watershed. For more background on the case (including all briefs), see my previous post from September 28, 2010.

The case presented the Michigan Supreme Court with several fundamental legal issues. The first two issues concern the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), which expressly provides that “any person” may bring a court action for “the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” (MCL 324.1701) Citizens and environmental groups historically had used MEPA to bring suit against private parties for their pollution and against state agencies when they allow such pollution by granting permits. However, the ability of citizens to enforce MEPA in the courts and against the state was limited by several Supreme Court decisions in the past decade.

First, the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) cast doubt on the ability of citizens to bring a MEPA suit against the state for permitting pollution by private parties. As I predicted in my September post, in its Anglers of the AuSable decision, the Court expressly overruled Preserve the Dunes and held that state agencies can be sued in court under MEPA and held accountable for pollution that will result from issuing permits. Chief Justice Kelly, who dissented in Preserve the Dunes and joined the Anglers of the AuSable majority in overruling that prior decision, wrote a separate concurrence to justify the decision under the doctrine of stare decisis.

The second MEPA issue involves the “standing” of citizens to have their cases heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447), adopted a far more restrictive test based on federal standing jurisprudence. Under the 2007 ruling, a citizen seeking to bring a MEPA claim was required to establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.” Again, as I predicted in September, the Court in Anglers of the AuSable overruled the restrictive standing test used in Michigan Citizens for Water Conservation and instead relied on its 2010 decision in Lansing Schools Education Association v Lansing Board of Education to apply MEPA’s express statutory language and allow any citizen to bring suit under the law.

In addition to the MEPA issues, the Michigan Supreme Court was also faced with several legal issues under Michigan riparian water law. Most significantly, the Court was asked to rule on the appropriate legal test for discharge of polluted water and whether Merit’s proposed diversion of contaminated water from the Manistee River watershed into Kolke Creek and the AuSable River watershed was lawful. The Court declined to clarify the relevant legal test, instead offering a simple and conclusory opinion that Merit’s discharge, in these circumstances, is “manifestly unreasonable”:

While the parties agree that the reasonableness of the water’s use is the determining factor in deciding water-use cases, they do not agree on using the “reasonable use balancing test” from Nestlé. We do not pass judgment on that test in this case because, under any test and by any standard, the discharge plan at issue is manifestly unreasonable. 

The Court continued:

Defendants have presented no authority for the proposition that the diversion of contaminated water from one source to an uncontaminated watershed should be considered reasonable. It would be incongruous to hold that it is reasonable to decontaminate water by contaminating different water.

This broad holding against diverting water was tempered in several accompanying footnotes (16 and 17), stating:

We do not hold that diverting water from one watershed to another is ipso facto unreasonable. Our concern today is with the discharge of contaminated water into an uncontaminated watershed. ... In reaching this decision, it is important to note that we focus our ruling on the reasonableness of using Kolke Creek as a discharge point for contaminated water removed from a separate watershed. We are not basing this decision on Merit’s status as a riparian or groundwater user. We are not basing this decision on Merit’s status as an off-tract or on-tract water user. And we are not basing this decision on the fact that Merit is seeking to divert water out of the Manistee River watershed. 

A final water law issue, whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy), was avoided by the Court because it was not “outcome-determinative” according to the majority.

Three Justices (out of seven) dissented from the majority opinion. Justice Young (who is expected to command a new majority after the November election and be elected Chief Justice next week) authored the dissent disagreeing with the majority on every issue. Justice Young’s dissent concluded:

This case is moot. Not only has Merit voluntarily abandoned the easement that granted it physical access to Kolke Creek, the circuit court has also vacated the underlying DEQ permit that would have allowed it to make its proposed discharge. Accordingly, any substantive decision that this Court renders only affects the parties in the abstract. This Court has long stated that it is not a constitutional exercise of the judicial power to decide abstract cases. Therefore, I vehemently dissent from this Court’s decision to render a substantive ruling in this case.

Furthermore, I strongly dissent from the lead opinion’s unnecessarily disruptive disposition of the substantive issues in this case. The lead opinion fashions out of whole cloth a categorical rule that “contaminated” water originating from one watershed can never be discharged into watercourses in another watershed because such a discharge inherently violates the riparian rights of landowners at the point of discharge. This decision has no basis in Michigan’s well-established water law, under which the touchstone of “reasonableness” has served the citizens of this state, including these riparian plaintiffs, very well. Finally, the lead and concurring opinions’ claim that Preserve the Dunes was wrongly decided is inconsistent with the plain language of MEPA and will wreak havoc on this state’s legal system.

In short, the lead opinion’s palpably erroneous decision and the concurring justices’ acquiescence in the result of that decision are affronts to the rule of law and reflect the majority’s unseemly haste to render a decision in this case before the end of calendar year 2010. The decision this Court renders today is a prime example of the naked exercise of power without constitutional warrant. While there may be some who will welcome today’s result, they should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state’s fragile economy.

My personal take (full disclaimer – the Great Lakes Environmental Law Center was involved in the litigation and filed an amicus brief with the National Wildlife Federation) is that the MEPA issues were correctly decided, most importantly restoring citizen standing based on the legislature’s express statutory language. I’m sympathetic to the ultimate outcome regarding the discharge of polluted water from another watershed, but the majority offered a very short and unsatisfying analysis of the underlying legal principles and issues and did little to clarify this area of law. I agree with Justice Young that the majority’s new rule on discharge of polluted water warranted far more explanation and citation of precedent.

Regardless of the politics and legal details of the opinion, the decision is a huge victory for Anglers of the AuSable and a fitting final tribute to Rusty Gates who founded the organization and presided over it until he died at age 54 last December. Thousands of fly fishermen loved Rusty and his Gates Au Sable Lodge in Grayling. Rusty was a conservation champion, and his efforts to protect the AuSable River were equaled only by his fishing knowledge and enthusiasm for the sport. 

Update: More coverage of the decision by the AP's Ed White in the Chicago Tribune.

Framing Water Policy in a Carbon Affected and Carbon Constrained Environment

With Prof. Robert Abrams, I’ve published a new article that focuses on the challenges for water management as climate change affects water resources and climate change mitigation policy affects water allocation decisions. The article, “Framing Water Policy in a Carbon Affected and Carbon Constrained Environment”, was published in a special Fiftieth Anniversary edition of the Natural Resources Journal (citation - 50 Natural Resources Journal 3 (2010)). Here’s the abstract, and the full article is available online:

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water for food security. The analysis suggests that water governance institutions and policies need to be retooled to better accommodate the necessary reallocation of water that will serve the nation’s water security needs.

Michigan Supreme Court will determine whether citizens can sue over state permitting decisions and the extent of riparian rights for water diversions and discharges

Next week, the Michigan Supreme Court will hold oral arguments in the case Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company. The case has received little attention (update: a notable exception is the great coverage of the case by Sandra Svoboda of Metro Times), but will likely have significant implications for environmental and water law in Michigan. The case involves a dispute over a deal Merit Energy reached with the state to remediate groundwater contamination and discharge over one million gallons per day of water (which originates in the Manistee River watershed) into Kolke Creek and the AuSable River watershed. 

The Michigan Supreme Court is hearing the case to address several fundamental legal issues under Michigan law. The first two issues concern the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), which expressly provides that  “any person” may bring a court action for “the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” (MCL 324.1701)

Citizens and environmental groups historically had used MEPA to bring suit against private parties for their pollution and against state agencies when they permit such pollution. However, the Michigan Supreme Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) cast doubt on the ability of citizens to bring a MEPA suit against the state for permitting pollution by private parties. Given the make-up of the current court (Chief Justice Kelly, who dissented in Preserve the Dunes, is now in the majority on most issues before the court), I expect that the Michigan Supreme Court will either overrule Preserve the Dunes or narrow the decision to its unique facts, and once again allow citizens to hold state agencies accountable under MEPA when the agencies permit pollution, impairment, and destruction of Michigan’s environment.

The second MEPA issue involves the “standing” of citizens to have their cases heard in court. While MEPA allows “any person” to bring suit under the law, the Michigan Supreme Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc (727 NW2d 447), adopted a far more restrictive test based on federal standing jurisprudence. Under the 2007 ruling, a citizen seeking to bring a MEPA claim was required to establish that “he has suffered or will imminently suffer a concrete and particularized injury in fact.” Again, with the changed make-up of the court (the dissenting justices in Michigan Citizens for Water Conservation now command a majority on the court), it was widely expected that the current court would overrule the restrictive standing requirement and allow “any person” to bring a MEPA suit (as the legislature expressly provided). As it turned out, the court did just that in its decision early this summer in Lansing Schools Education Association v Lansing Board of Education, expressly overruling the prior restrictive standing test and opening the court doors to any plaintiffs with a cause of action. Given the Lansing Schools decision, it is almost certain the court will once again allow “any person” to file a MEPA claim in court.

In addition to the MEPA issues, the Michigan Supreme Court will also use the case to clarify several related issues under Michigan riparian water law. First, the court will determine whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy). Second, the court will determine if discharge of water, including pollution, is permissible under riparian law. Finally, if such actions are permissible under riparian law, the court will determine whether the desired activities are given the benefit of a “reasonable use balancing test” in which their benefits are compared to their harms. Predicting how the court will rule on these issues is a bit tougher than predicting the outcome of the MEPA issues. I expect the fundamental “reasonable use” approach to be upheld, but not for harmful “pollution.” How the court will rule on conveyance of riparian rights by easement is a toss-up, and could go either way.

The Great Lakes Environmental Law Center and National Wildlife Federation filed a superb and comprehensive amicus brief that provides a sound approach for the court to use in addressing these complex environmental and water law issues. (Great work by Sara Gosman of NWF, Nick Schroeck of GLELC, and the students of the Wayne Environmental Law Clinic.) Here are links to all of the briefs filed; oral argument is scheduled for Wednesday October 6:

• Brief of Plaintiffs-Appellants Anglers of the AuSable, Inc., Mayer Family Investments, LLC, and Nancy A. Forcier Trust
• Reply Brief of Plaintiffs-Appellants Anglers of the AuSable, Inc., Mayer Family Investments, LLC, and Nancy A. Forcier Trust
• Brief of Defendant-Appellee Department of Natural Resources and Environment
• Brief of Defendant-Appellee Merit Energy Company
• Brief of Amici National Wildlife Federation and Great Lakes Environmental Law Center
• Brief of Amicus Michigan Council of Trout Unlimited
• Brief of Amicus Preserve the Dunes, Inc.
• Brief of Amicus Michigan Manufacturers Association
• Brief of Amicus Michigan Environmental Council
• Brief of Amicus Michigan Citizens for Water Conservation

Colorado bottled water dispute raises questions about western water deals and renews calls for federal regulatory reform

Another bottled water fight is heating up, this time in Colorado, where Nestle is moving forward with plans to bottle spring water that feeds the Arkansas River. Scot Kersgaard of the Colorado Independent has superb reporting of the dispute, which follows the typical storyline of bottled water fights in rural communities (with an interesting twist of some local officials from Chaffee County making cash on the deal).

From a legal perspective, the Colorado controversy raises some interesting new issues about bottling and selling water under western prior appropriation law. To obtain water rights to pump the desired spring water, Nestle reached a deal with the city of Aurora to lease 65 million gallons of Arkansas River water per year for twenty years. In theory, the leased water offsets Nestle’s spring water pumping and ensures that other water rights to the river are not harmed.  It’s an interesting market-based solution to obtain spring water for bottling under prior appropriation law in a Western water basin that is already fully used. 

However, prior appropriation law restricts the water right to a specific beneficial use, which for the city of Aurora was municipal supply.  As reported in the Colorado Independent, the general manager of the Upper Arkansas Water Conservancy District raised questions about whether the city of Aurora can transfer its water rights to Nestle, stating: “Water is decreed for specific uses in specific areas. Aurora’s water rights in the Arkansas Basin were decreed for their use in their municipality.” Because Aurora’s water rights are for the beneficial use of municipal supply, not commercial bottling, the water rights may not be valid if used by Nestle to offset its spring water pumping.

In addition to raising unique prior appropriation legal questions, the Colorado dispute again demonstrates the need for reform of federal bottled water regulations. We don’t need the federal government to regulate water pumping for bottled water, a field historically left to the states. Instead, we simply need the federal Food and Drug Administration, which sets rules for defining and labeling “spring water,” to stop encouraging the pumping of water from small, vulnerable spring water systems with its label rules. This could be a relatively easy win-win policy reform, especially if one of the influential national environmental groups worked directly with Nestle and other industry players to develop a solution and bring it to the FDA with broad support.

And while I’m on the subject of Colorado water, I have to pass along this little bit of water policy nonsense from the Republican Colorado Gubernatorial candidate, Dan Maes (and again reported by Scot Kersgaard of the Colorado Independent). Speaking to the Colorado Water Congress about the complex problem of interstate management and over allocation of the Colorado River, Maes stated: “If it starts in Colorado, it’s our water.” Sorry Dan, but a century of well established law, from the Supreme Court of the United States and binding compacts approved by Congress and the western states (including Colorado), says just the opposite.  The upstream state does not own the entire river nor can it use all of the water to the detriment of the many downstream states that also have sovereign rights to water resources. Maes’ declaration brings back memories of Judson Harmon, the former Attorney General whose name is forever associated with his proposed (and widely rejected) doctrine of absolute territorial sovereignty over rivers. If Mr. Maes becomes Colorado’s next governor and takes action based on his ill-informed view of interstate water rights, he’ll quickly find himself on the losing end of a Supreme Court case. 

Is groundwater marketing legal?

When Texas oil tycoon T. Boone Pickens proposed a massive scheme to acquire, market, and sell Texas groundwater, many water wonks began questioning if groundwater marketing is legal.  (For the latest on the Pickens water scheme and its legal issues, see Dr. Michael Campana’s WaterWired blog.)  Regardless of the merits of Pickens’ proposal, it raises the fundamental question of whether groundwater marketing is legal under the diverse state laws that apply to groundwater rights. 

I was fortunate to work with a superb University of Michigan law student, Dean Baxtresser, who recently published an excellent note “Antiques Roadshow: The Common Law and the Coming Age of Groundwater Marketing” in the Michigan Law Review that provides a complete analysis of the legality of groundwater marketing in the United States.  A short summary won’t do it justice, but here is the abstract:

“Groundwater law in the United States is ill suited to deal with the issue of groundwater marketing. As freshwater shortages become more common with increasing population and a warming climate, scholars and business people are touting water markets as the solution to conservation and distribution, as well as a source of hefty profits. T. Boone Pickens—the famous oil tycoon of Texas—has turned this concept into reality with his attempt to exploit the groundwater of the Ogallala Aquifer in the Texas Panhandle for thirsty Texas cities. Despite the looming water shortages, however, states have not adapted their laws to deal with the marketing issue. As a result, the legality of groundwater marketing like the Pickens Plan is currently decided by outdated laws that were never meant to deal with groundwater marketing. In general, groundwater marketing is only legal where the law permits off-tract use—an old distinction that bears no relationship to the policy issues that must be raised by state legislatures to seriously address upcoming severe water shortages. This Note examines the various legal doctrines in the United States governing groundwater and determines that, whether for or against water marketing, states should affirmatively address the policy issues presented by the potential of marketing by updating their laws so that they can deal with the new paradigm of high-value groundwater in a thirsty age.”

Baxtresser also takes aim at recent debates over using the public trust doctrine to guard against groundwater marketing:

“The current interpretation of the public trust doctrine has no bearing on the legality of groundwater markets in any given state. Based on the logic the courts have used to extend the doctrine, it is unlikely to be extended to groundwater without redefining what the doctrine protects (an unlikely proposition). Were the doctrine to apply to groundwater based on its effect on surface water, the legality of groundwater marketing would be unaffected. Were the doctrine applied to all groundwater, the legality would remain unaffected because of the unwillingness of courts to wreak economic havoc on groundwater users. As a result, states will be unable to rely on the public trust doctrine as a source of law that will decide the issue of groundwater marketing for them.”

So here’s the bottom line: The legality of groundwater marketing depends on common law doctrines that vary by state and were created long before massive groundwater water marketing was even possible.  The public trust doctrine does not apply to groundwater and does not prohibit water marketing, at least as currently applied by courts.  (I reached a similar conclusion regarding the public trust doctrine and groundwater in my recent article on bottled water).  So whether you are for or against groundwater marketing, it’s clear that the issue should be addressed directly through state legislation that considers both private property rights and public interests in water resources, and not left to courts applying common law doctrines in ways never intended.

Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water

The University of Denver’s Water Law Review has just published my article, “Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water.”  The citation is 13 U. Denv. Water L. Rev. 1 (2009), and I’m honored that the article was selected as the lead article of this year’s volume of the Water Law Review. 

The article covers a brief history of bottled water, the business of bottled water, and opposition to bottled water, along with a short summary of international trade law and federal food law as applied to the bottled water market.  It then provides a detailed analysis of bottled water issues in the courts, legislatures, and politics – providing case studies of the good, the bad, and the ugly results of bottled water controversies.  The article concludes with an analysis of two recent strategies for addressing bottled water – expansion of the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses.  Here’s an excerpt from the introduction, followed by the conclusion:

Global water markets are now a reality. Whether water should be bought and sold, imported and exported, is a difficult and important question that raises issues ranging from human rights obligations and environmental ethics to economic liberalism and the role of corporations. It is also, for purposes of this article, totally moot. At some point in time in the recent past, most likely during my lifetime but before the turn of the twenty-first century, water went global. We do not yet know how great or terrible the implications of global water markets will be for freshwater resources and the people, communities, and environment they sustain. That is still in our hands and depends largely on how domestic laws manage and protect our freshwater resources in the era of global water markets. ....

Opposition to bottled water pumping is almost always based on two general sets of concerns. The first concern relates to the impact of water extraction to fill the billions of bottles Americans purchase every year. Opponents are concerned that the high capacity water pumping, usually from groundwater that is critically important to relatively small connected springs, will reduce stream flows or otherwise harm the natural ecosystem and riparian interests. While water bottling has almost no impact on the total national freshwater supply, the majority of bottled water comes from groundwater which has a direct hydrologic connection to springs and other vulnerable surface waters. Thus, even relatively small water withdrawals for bottled water can produce significant impacts at the local scale on other water users and the environment. ....

The second concern that underlies bottled water disputes is far less suited to legal relief. Some opponents object to the very nature of the use - that is, taking water from the ground or a river to sell it in a bottle. This concern is more social than environmental; it is based on a view that water is a public good and human right that should not be commoditized and sold for profit. For opponents holding this view, reducing the quantity of the water withdrawal to some level that minimizes impacts on other water users and the environment fails to solve the fundamental problem of water commoditization. These opponents object to the extraction and sale of water for profit under any circumstances. ....

Along with climate change, globalization may be the most significant challenge for state water law in the twenty first century. The pressures on water resources are no longer limited to local users and property owners but now include supply for a global water market. Bottled water is the oldest and most mature water market that transcends state lines. Bottled water disputes have forced state courts and political leaders to reevaluate old doctrines and water management regulations. In most cases, bottled water disputes have led to meaningful and useful legal reforms, especially in the area of groundwater management. However, in some cases bottled water disputes have exposed problematic flaws in state water law and protectionist knee-jerk reactions by state political leaders that would do nothing to better protect water resources. Unsatisfied by modest reforms in the courts and legislatures, bottled water opponents have turned their hopes to the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Instead, bottled water opponents and state leaders should take the challenge of bottled water as an opportunity to further reform water management law with an emphasis on resource protection, science-based decision making, and water conservation. These approaches will help protect water resources from the pressures of globalization while respecting property rights and international trade law rules.

The Evolution of the Law and Politics of Water

 

Apologies for the shameless shilling of a product, but if you are looking for a last-minute holiday gift for the water wonk in your life, consider the new book, The Evolution of the Law and Politics of Water.  (I contributed a chapter on the Great Lakes but don’t get any royalties, although I did get one free copy of the book to put on my shelf.)  Here’s the description from the publisher (Springer):

The Evolution of the Law and Politics of Water presents an overview of global trends in water law and policy and assesses current global water governance. It provides an historic understanding of how and why after 5,000 years of water governance, that governance still has not reached stability. It identifies the key research questions for water law and policy while providing an overview of the current global water governance regime, its evolving characteristics, and the legal theories involved in these changes. It focuses on water law and discusses the characteristics of national, supranational, and international water law through a combination of case studies and thematic chapters.

The Evolution of the Law and Politics of Water is the first volume to take a global perspective on the evolution of water law and policy. It describes global patterns and sets forth the particulars of eight national legal systems drawn from every continent and five regional or supranational systems, as well as the body of customary international law as a whole. In particular, it is the first book to explore the interrelation between culture, religion, government and law in water governance and management. The volume is, therefore, a must-read for anyone interested in how water governance has changed through time and in different places as well as anyone interested in how water law has sought to channel water governance through time and in different places and what variables account for the relative success (or lack of success) of water law in performing this channelling function. It is suggestive of possible lines of water law reform and whether a particular reform is likely to be successful.

The book is edited by Joe Dellapenna and Joyeeta Gupta and features some of the leading water law scholars covering water policy across history, religion, culture, and geography.  Check out the table of contents:

Part I - Introduction
1. The Evolution of Global Water Law (Joseph W. Dellapenna and Joyeeta Gupta)
2. Mesopotamia: A History of Water and Law (Itzchak E. Kornfeld)
3. Islamic Law and the Politics of Water (Thomas Naff)
4. Water in the Jewish Legal Tradition (Richard Laster, Rabbi David Aronovsky, and Dan Livney)

Part II - Evolving National Law and Politics
5. Brazil: The Evolution of the Law and Politics of Water (Paulo José Leite Farias)
6. South Africa: The Development of Water Law (Michael Kidd)
7. East African Water Regimes: The Case of Kenya (David Nilsson and Ezekiel Nyangeri Nyanchaga)
8. Israel: The Evolution of Water Law and Policy (Richard Laster and Dan Livney)
9. Russia: Historical Dimensions of Water Management (Vladimir Kotov)
10. India: Evolution of Water Law and Policy (Philippe Cullet and Joyeeta Gupta)
11. Australia: The Problem of Sustainability in Water (Jennifer McKay and Simon Marsden)
12. United States: The Allocation of Surface Waters (Joseph W. Dellapenna)
13. United States: The Emergence of Environmental Considerations (Sandra Zellmer)

Part III - Evolving Supranational and Regional Water Law and Politics
14. European Community Water Policy (Paulo Canelas de Castro)
15. Southern Africa: Evolving Regional Water Law and Politics (Pieter van der Zaag)
16. The Jordan Basin: Evolution of the Rules (Robbie Sabel)
17. The North American Great Lakes (Noah D. Hall)
18. The Río de la Plata Basin (Griselda D. Capaldo)

Part IV - Current Trends in International Water Law
19. Case Law on International Watercourses (Lilian del Castillo-Laborde)
20. International Cooperation on Water Resources (Maria Manuela Farrajota)
21. Public Participation in Water Governance (Jona Razzaque)
22. The Market Alternative (Joseph W. Dellapenna)

Part V - Conclusions
23. The Challenges for the Twenty-First Century: A Critical Approach (Joyeeta Gupta and Joseph W. Dellapenna)

Your local bookstore (if you are lucky enough to still have a local bookstore) can order it from Springer.  Alternatively, Amazon is currently selling it almost 40% off list price.

Guest Post: Recognizing Federally Reserved Groundwater Rights

Federally reserved water rights are a major issue in the West, and beginning to emerge in disputes and policy issues in the Great Lakes region.  While federally reserved water rights are well established for surface waters, courts and states are split on their applicability to groundwater.  Carlin Danz, a former water law student and research assistant at the University of Michigan Law School, has prepared an excellent analysis of the debate over recognizing federally reserved groundwater rights.  He concludes that courts should recognize federally reserved groundwater rights for numerous legal, policy, justice, and scientific reasons.  Here’s his guest post with a link to his full paper:

When the federal government explicitly reserves land from the public domain, it implicitly reserves sufficient water to fulfill the purpose of that reservation.  This statement of law is known as the federally reserved rights doctrine and commonly called the Winters doctrine based on the leading precedent, Winters v. United States.

Traditionally, reserved rights have only been asserted for surface water.  However, groundwater should also be made available to federal reservations in order to satisfy their needs.  This is logical for a variety of reasons.  It is widely acknowledged that groundwater and surface water are hydrologically interrelated.  Further, groundwater is often more economical, more readily available, and of higher quality than surface water.

The majority of courts that have directly addressed the scope of reserved rights have recognized that the doctrine encompasses both surface water and groundwater.  Yet, despite the judicial trend toward comprehensive recognition, the Supreme Court has not seen fit to decide this issue with finality.
Without guidance from the Supreme Court, state supreme courts will continue to split on the issue of recognizing reserved rights in groundwater.   Until the scope of reserved rights is conclusively delineated, federal reservations will receive inadequate and uneven protection under the law, and reserved rights will remain one of water law’s most contentious issues.

This paper (free download here) examines the judicial history of the federally reserved rights doctrine.  It also enumerate arguments for (and against) the recognition of groundwater in reserved rights.  I conclude with the assertion that the Supreme Court must recognize reserved rights in groundwater for the economical, efficient, and just disposition of water resources in the United States.

Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water

My most recent article, Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water, will be published in the next volume of the University of Denver’s Water Law Review and a prepublication draft is now available online. 

The article covers a brief history of bottled water, the business of bottled water, and opposition to bottled water, along with a short summary of international trade law and federal food law as applied to the bottled water market.  It then provides a detailed analysis of bottled water issues in the courts, legislatures, and politics – providing case studies of the good, the bad, and the ugly results of bottled water controversies.  The article concludes with an analysis of two recent strategies for addressing bottled water – expansion of the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses.  Here’s the abstract, followed by the conclusion:

Abstract:

Throughout human history, water has defined our sense of place.  American water law reflects the connections between water and local people, communities, and the environment.  Against this backdrop, global water markets have developed to sell and export this increasingly precious resource.  Water markets are recognized in international trade law and take many forms, from tankers of freshwater crossing the Mediterranean to bottles of spring water coming to America from distant pacific islands.  While the scale of water sales and exports is still relatively small, this emerging market represents a new challenge for management of water resources.

This article examines the challenge of protecting freshwater resources in the era of global water markets by looking at the most mature and developed example – bottled water.  Bottled water in America dates back to colonial times, but over the past decade it has become a massive global industry.  As bottled water has grown, so has the backlash against it.  The resulting lawsuits and legislation offer a glimpse of the future of domestic water law in the global water market era.  Bottled water fights provide important lessons for how the law should (and should not) respond to globalization of water use.  By learning from these lessons, we can meet the challenge of global trade in water by developing effective legal protections for our freshwater resources.

Conclusion:

Along with climate change, globalization may be the most significant challenge for state water law in the twenty first century.  The pressures on water resources are no longer limited to local users and property owners, but now include supply for a global water market.  Bottled water is the oldest and most mature water market that transcends state lines.  Bottled water disputes have forced state courts and political leaders to reevaluate old doctrines and water management regulations.  In most cases, bottled water disputes have lead to meaningful and useful legal reforms, especially in the area of groundwater management.  However, in some cases bottled water disputes have exposed problematic flaws in state water law and protectionist knee-jerk reactions by state political leaders that would do nothing to better protect water resources.

Unsatisfied by modest reforms in the courts and legislatures, bottled water opponents have turned their hopes to the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses.  Instead, bottled water opponents and state leaders should take the challenge of bottled water as an opportunity to further reform water management law with an emphasis on resource protection, science-based decision making, and water conservation.  These approaches will help protect water resources from the pressures of globalization while respecting property rights and international trade law rules.

Ohio court rules that the public cannot walk on Ohio’s Great Lakes beaches

Earlier this week, the Ohio Court of Appeals drastically limited the public’s right to use Ohio’s Great Lakes beaches.  In it decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the court held that public rights to Ohio’s portion of the Great Lakes extend only up to the water’s edge.  As a practical matter, this means you have to keep your feet in the water or you’ll be trespassing.  As a legal matter, this decision puts Ohio at odds with the vast majority of states (including Michigan) that recognize the public’s right to use shorelines up to the ordinary high water mark.  Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and is authoring a forthcoming law review article on the subject.  Ken is leading expert on this issue and provides the following analysis: 

An Ohio appeals court ruled this week that the public has no right to use the Ohio shores of the Great Lakes above the water’s edge.  According to the Ohio Court of Appeals decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the water’s edge – which can change moment to moment – is the boundary between privately owned lakefront property and state-owned lakebed in Ohio.  While the state owns the lakebed in trust, the appeals court ruled that the public trust in Ohio does not extend beyond the water’s edge, and lakefront owners have the right to exclude the public from walking on or otherwise using privately owned shores of Lake Erie above the water’s edge.

The Ohio Court of Appeals’ decision contrasts sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords members of the public the right to walk along even privately owned shores of the Great Lakes in Michigan up to the ordinary high water mark.  Although the Ohio decision recognized that the public has a right to walk on the lakebed, in effect the court said that the public must keep their feet wet when doing so.

The Merrill case was originated in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owns up to the ordinary high water mark along the Lake Erie shore and that lakefront owners must obtain leases from the state for certain uses of the shore below the ordinary high water mark.  (The governor subsequently abandoned that position in 2007, and the state no longer seeks to require leases for privately titled lakefront property.)  But while the case began as a dispute over title, also at issue was the public’s right to use the Great Lakes shores for recreational purposes.  Yesterday’s opinion by the Ohio Court of Appeals for the 11th District largely affirmed a 2007 decision in the case issued by the Lake County Court of Common Pleas.

Acknowledging that the case was one of first impression in Ohio, the state Court of Appeals primarily looked to earlier Ohio Supreme Court cases and the state legislature’s use of the term “natural shoreline” in the Fleming Act (ORC §§ 1506.10 & .11) to conclude that the actual water’s edge serves as the line of demarcation between the lands held in trust by the state underlying Lake Erie and the private lands of the lakefront owners.

In my humble view, the court erred by not recognizing that the public trust extends to the ordinary high water mark on the shores of Lake Erie.  As set forth more fully in my upcoming article, the shores of Lake Erie passed to the State of Ohio in trust up to the ordinary high water mark at the time it entered the union, and the General Assembly has not relinquished the public trust in the shores between the ordinary high water mark and the water’s edge.  The public should have the right to walk along the shores of the Great Lakes in Ohio, just as they do in Michigan, up to the ordinary high water mark.  
   

Framing Water Policy in a Carbon Affected and Carbon Constrained Environment

Robert Abrams (one the leading water law experts in the country) and I have just finished an extensive and detailed (even by law journal standards) new article “Framing Water Policy in a Carbon Affected and Carbon Constrained Environment,” to be published later this year in the Natural Resources Journal.  A prepublication draft is now available, and here is the abstract:

Immense stresses are being thrust upon the nation’s water resources by massive changes affecting water supply and demand.  The climate, driven by emissions of carbon dioxide and other greenhouse gases, is changing in ways that substantially alter water availability in the United States.  Concurrently, dramatic shifts in domestic energy policy and production are underway through which the nation is seeking to reduce GHG emissions and increase energy independence.  Somewhat paradoxically, it will take far more domestic electricity generation to make headway in simultaneously reducing carbon emissions and reducing dependence on insecure sources of supply.  These energy sector changes and other water demand escalators will vastly increase water demand, with much of the increase coming in areas that are now water short and are predicted to lose usable supply according to most climate change models.  This article examines the extent of those changes in water supply and demand and assesses how water demands will be met in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water for food security.  Finally, the article suggests that water governance institutions and policies need to be retooled to better accommodate the necessary reallocation of water that will serve the nation’s water security needs.

The role of water markets in dealing with climate change

Water markets are one of the most contentious issues in water policy.  Much of the debate lies in competing ideological views about the role of markets for allocating resources.  Yet often the ideological debate is a distraction from the real challenges of better defining legal water rights, valuing water (and thus water conservation), and of course eliminating the ridiculous and offensive government subsidies for water use and waste.

The debate over water markets will only heat up (dumb pun, sorry) as climate change puts more pressure on water resources, especially in the west.  A recent article by law professor Jonathan Adler provides a short and well written argument in favor of increased use of water markets to respond to the pressures of climate change on water supply and demand.  The article, Warming Up to Water Markets, was published in the Cato Institute’s Regulation journal, so it obviously comes from a pro-market perspective.  And while I don’t agree with every proposition and conclusion, Jonathan Adler does a nice job of providing a short summary of the challenges climate change presents for water policy and how markets can play a role in the solution (Jonathan also covers environmental law issues for the excellent Volokh Conspiracy blog, always worth reading).  He offers four general recommendations:

• Defining and recognizing the security and transferability of property rights in water resources
• Eliminating government subsidies for water use and distribution;
• Moving toward market-based prices for water; and
• Identifying and reducing legal and regulatory barriers to water transfers, particularly inter-basin and interstate water transfers.

I strongly agree with the first three recommendations, and would consider these only modest steps towards a true water market.  The final recommendation has some merit, but I would like to see water marketing applied within a watershed before markets are use to transfer water from one basin to another.  Water markets are also a much better fit with western water appropriation rights than eastern riparian reasonable use rights, a point often lost in the ideological debates. 

For more on water markets, and a great read in general, I highly recommend David Zetland’s Aguanomics blog.  Unlike Jonathan and I, David is an economist by background so he has experience with how markets can (and can’t) work in theory and practice.