Water as Commons: Public Control, Private Use, and Public

Trust

Jim Olson, Flow for Water.org

Public or Private Control

• We want control the water and sky

But the water and sky control us.

Private Ownership of Water

• Landowners own the groundwater under their land like, and, gravel, ores.

• Public trust is state ownership of our water. • It will lock up water so businesses can’t expand,

won’t relocate here, and we’ll lose even more jobs.

• The farmer won’t have groundwater to grow food. • The state will tax our groundwater.

Public Or Sovereign Control of Water

• Water is a commons and belongs to all of us. There is no private property right in groundwater.

• If we don’t protect water, our lives will be at the mercy of private corporations who will export and profit from our water.

• The only way to secure jobs, our economic future, and quality of life is to preserve water for future generations.

• Farmers, tourists, industry won’t have water if it can be taken from beneath their feet.

T. Boone Pickens

• There will be those who sell water, and those who want to buy it. It’s the guts and feathers of the thing. You just wait and see.

Water Trading, Marketing, and Free Markets

• The Economist -- Several articles endorsing water trading.

• Removal of “Water as Human Right” from Article 31`by Corporate Interests by World Water Council in Turkey.

• Unquenchable, Robert Glennon – Argues for efficiency over public values, not part of economic equations, embraced by public trust in water.

Water as Water or Life

• “I like water better than money.”

Michael Delp, Michigan Poet

Root of the Public Trust Doctrine: Institutes of Justinian, 2.1.1, 529 A.D

By the law of nature, these things are common to mankind: the air, running water, the sea, and consequently the shores of the sea.

The Magna Carta

• There are things so essential to human dignity that they are beyond the reach of government to take from citizens.

• The sea beds and the fish and food in them belonged to the people and could not be sold or given away by the Crown to Lords for their private benefit.

The Running Water, the Sea, the Fish …

• … common to all citizens. ... Of this latter kind ... are air, the running water, the sea, the fish, and the wild beasts. (citations omitted) … therefore, the wisdom of that law has placed it in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit. Arnold v Mundy (N.J.1821)

The Public TrustIllinois Central Railroad v Illinois

(1892)It is a title held in trust for the people of the state,

that they may enjoy the navigation of waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties. The trust devolving upon the State for the public, and which can only be discharged by the management and control of the property in which the public has an interest, cannot be relinquished by a transfer of the property…

Michigan: Navigable Waters Have Been Subject to Public

Trust for over 100 Years• No transfer or alienation for private purposes; No

subsidization of private uses;• Private use cannot interfere or impair; • “trusts connected with public property, or [where

there is] property of a special character;• Public Purpose and Uses: domestic water, fishing,

boating, hunting, swimming, recreation, and education. Nedtweg v Wallce; Collins v Gerhardt

• Public value presumed and burden of proofObrecht v National Gympsum; People v Broedell

Justice Cooley, 19th Century Jurist

• For water is a moveable, wandering thing, and must of necessity continue common by the law of nature.

Hudson County v. McCarter209 U.S. 349 (1908) – Public

Control.• A riparian proprietor has no right to divert waters

for more than a reasonable distance from the body of the stream or for other than the well-known ordinary uses, and that for any purpose anywhere he is narrowly limited in amount. …. [T]here is a residuum of public ownership in the state. It reinforced the state's … as against the rights of riparian owners merely as such, the state was warranted in prohibiting the acquisition of the title to water on a larger scale -- Justice Holmes

State Sovereign Power in Hudson County

• That the constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs.

Kennedy v Niles Water Co, 173 Mich 474 (1912) – Protecting Watersheds

• So long as the use made of the water by a common proprietor is the common use …so long as other common owners are not injured thereby, or prevented, or excluded from making such use as of common right belongs to them. If a wrongful use is made of the water of a running stream by a common proprietor, as if he finally diverts the water, such is by common consent presumed to be injurious and therefore adverse.

Groundwater Law – Right of Use

• Rule of Capture – England, Maine, and Texas -- as long as it benefits the estate

• Reasonable Use or American Rule• Correlative rights -- mix of balancing and no off tract

severance or diversion• Allocation (groundwater v appropriation by statutory

law) MCWC v Nestle “reasonable use balancing test”• Restatement of Torts – balancing of harms and

benefits – severing water from the land • Variations

Tributary Groundwater: Collens v New Canna

Water (1967)• It is immaterial in what manner the

diversion of the stream by the defendants is effected. Diversion or diminution of the natural flow of a surface stream to the detriment of the riparian owners by the defendant’s pumping water from the wells supplied by the underground waters which support the visible stream … entitles them to injunctive relief. Smith v City of Brooklyn, 160 NY 357, 360, 54 NE 787, 45 LRA 664.

Schenk v City of Ann Arbor

• [Reasonable Use] does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it results there from that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs, or streams are thereby materially diminished in flow .

Katz Case

• California follows the same general rule to protect the appropriation rights and beneficial uses of lakes and streams.

Michigan Citizens for Water Conservation v Nestle

• Trial court prohibited pumping where it diminished the stream;

• Appellate Court adopted a “reasonable use balancing test” and remanded to trial court:- adequate water in stream

- economic and other benefits to Nestle, state and local community;

Exposed public trust and riparian uses to sweeping exports or sale from watersheds.

Anglers of the AuSable v MDEQ/Merit Energy

• The Court of Appeals extended the rule of MCWC v Nestle to all lakes and streams, including the Great Lakes.

• The “non-diversion” and “non riparian” line that protects flows and levels of lakes and streams has been erased.

• Individual harm and loss can be offset by social and economic benefits.

What Can Citizens and States Do?

Exercise residuum of sovereign power to protect the public interest in water:

• Pass constitutional amendments

• State Legislation

State Constitutions - Sovereign Power in Water

• State constitutions declare groundwater subject to public trust; e.g.

• Hawaii -- In the Matter of Water Use Permit Applications, 9 P3d 409 (HA 2000) (public trust in groundwater through common law and state constitutional provisions);

• Michigan, Art 4, Sec.52; State shall pass laws that protect paramount public concern in air, water, and natural resources.

State Law - Exercise Residuum of Public Control

• Vermont• Michigan Environmental Protection Act

(citizens may bring suits to protect “air, water, natural resources or public trust)

• National Audubon Soc v Superior Court, 33 Cal 3d 419 (1983) (Mono Lake Case)

• Vermont Public Trust Law • Local Ordinances – Charters v Preemption

Examples of State Legislation

• New Jersey (“including groundwater, and the public trust therein”);

• Delaware (“water resources of state” held by state “as trustee” for the public);

• Vermont (declares public trust in groundwater of the state);

• California and Colorado (Water held by the state for the benefit of the people, subject to beneficial uses or appropriation doctrine)

• Michigan and Wisconsin wetlands, inland lakes and stream public trust laws.

Michigan House Bill 5319

• PART 4. PUBLIC TRUST RESOURCES 2 SEC. 401.

• (1) THE CONSERVATION AND DEVELOPMENT OF THE NATURAL RESOURCES OF THE STATE ARE OF PARAMOUNT PUBLIC CONCERN IN THE INTEREST OF THE HEALTH, SAFETY, AND GENERAL WELFARE OF THE PEOPLE, AND THE AIR, WATER, AND OTHER NATURAL RESOURCES OF THE STATE SHALL BE PROTECTED FROM POLLUTION, IMPAIRMENT, AND DESTRUCTION.

• (2) THE WATERS OF THE STATE, INCLUDING GROUNDWATER, ARE HELD IN TRUST BY THE STATE. THE STATE SHALL PROTECT THESE WATERS AND OTHER NATURAL RESOURCES THAT ARE SUBJECT TO THE PUBLIC TRUST FOR THE BENEFIT OF PRESENT AND FUTURE GENERATIONS.

• (3) THE ATTORNEY GENERAL, ON BEHALF OF THE STATE, OR ANY OTHER PERSON MAY MAINTAIN AN ACTION IN THE CIRCUIT COURT HAVING JURISDICTION TO ENFORCE THE PUBLIC TRUST IN THE STATE'S NATURAL RESOURCES, EITHER ALONE OR IN CONJUNCTION WITH OTHER PROVISIONS OF THIS ACT OR OTHER LEGAL REMEDIES THAT ARE APPROPRIATE. THE CIRCUIT COURT MAY APPORTION COSTS, INCLUDING ATTORNEY FEES, IF THE INTERESTS

OF JUSTICE REQUIRE.

Water-for-Sale Product Loophole in the Great Lakes Compact

• Section 1.2 defines “Diversion” does not apply or include any “Product.”

• Section 1.2 defines “Product” as ““water produced ... or intended for intermediate or end use consumers.”

Addition of “Bottled Water” Provision

A proposal to withdraw water and to remove it from the Basin in containers greater than 5.7 gallons shall be treated under this Compact in the same manner as a proposal for a diversion.

Compact and “Joint Statement” to NAFTA

• “water in its natural state ... is not a good or product.” Sounds okay, but ….

• [U]nless water, in any form, has entered into commerce and becomes a good or product.” NOT OKAY!

Close the Door: The FLOW FOR WATER COALITION

Enact Public Trust Laws

• House Bill 5319

• Support House Resolution 551.

• Local Ordinances and Resolutions

-- Milwaukee Resolution-- Blue Planet Ottawa Resolution

-- New Hampshire/CELDF Model

-- Detroit Shut offs and other protections

Become a Fan of the Water Preserve the Promise of of the

Great Lakes• Support FLOW FOR WATER.ORG

• Public Trust in water in all Great Lakes States and Provinces

• Close the Compact Loophole

• Prevent Private Control of Public Water

Water as International Security

• More than a billion people lack access to water.

• In 2025, the number may be as high as 2 billion.

Climate Change and Public Trust

• Water and climate change (CO2 limits) are inseparable.

• Climate change is the single largest diversion of the Great Lakes.

• Public trust in every arc of the water cycle.

Remember the Eye of the Sturgeon