THE GREAT LAKES-ST. LAWRENCE RIVER BASIN WATER RESOURCES
COMPACT: GROUNDWATER AND THE PUBLIC TRUST DOCTRINE
DANA M. SAEGER†
I. INTRODUCTION
With water levels in the Great Lakes hitting record lows at the turn of the
millennium and water-intensive communities waiting in the wings for outof-basin diversions, it is time to ask whether, and in what manner, water
withdrawals from the Great Lakes should be restricted.1
The attempt of the Great Lakes States to commandeer what has always
been considered a national resource treasure is outrageous.2
States like Wisconsin are awash in water.3
On February 20, 2007, Minnesota became the first state to adopt The Great
Lakes-St. Lawrence River Basin Water Resources Compact (Compact).4 The legislation
signed by Minnesota Governor Tim Pawlenty marked yet another milestone in the effort
to limit large scale diversions of water from-and within- the Great Lakes basin.5 The
†
Dana M. Saeger, Juris Doctoral candidate, University of South Dakota School of Law, May 2008; B.A.
Political Science, Saint Cloud State University; M.A. Political Science, University of South Dakota.
1
Melissa Kwaterski Scanlon, Jodi Habush Sinykin, and James Krohelski, Realizing The Promise of the
Great Lakes Compact: A Policy Analysis for State Implementation, 8 Vt. J. Envtl L. 39 (2006).
2
Jay Lehr, Ph.D. Groundwater Hydrology, quoted by James Hoare, Great Lakes Water Compact
Foundering, The Heartland Institute, June 2007, available at
http://www.heartland.org/Article.cfm?artId=21210 (last viewed Oct. 10, 2007).
3
New Mexico Governor and Democratic Presidential Candidate Bill Richardson speaking on the topic of
diverting Great Lakes water to the Southwest. See Michael J. Mishak, Sharing Water is Key to
Richardson’s Plan, Las Vegas Sun, Oct. 4, 2007, available at
http://politics.lasvegassun.com/2007/10/sharing-water-i.html (last viewed Oct. 9, 2007). Among the more
colorful responses in the heated discourse following Richardson’s remarks was from Rep. Vern Ehlers, a
Grand Rapids Republican: “If anyone would try to divert water, I would suspect we’d call up the militia
and take up arms.” See Todd Spangler, Miller, Ehlers warn panel to leave Great Lakes alone, Detroit Free
Press, Nov. 8, 2007, available at
http://www.freep.com/apps/pbcs.dll/article?AID=/20071108/NEWS07/71108047 (last viewed Nov. 11,
2007).
4
Tom Meersman, Minnesota Oks Great Lakes pact, Minneapolis Star Tribune, Feb. 20, 2007, at 4B.
Tom Meersman, Minnesota Oks Great Lakes pact, Minneapolis Star Tribune, Feb. 20, 2007, at 4B.
Illinois has since signed on to the Compact as well. See Alliance For The Great Lakes, Alliance Praises
Illinois’ Passage of Great Lakes Compact, http://www.greatlakes.org/news/081807.asp (last viewed Sept.
13, 2007). Illinois Governor Rod Blagojevich signed the Compact legislation on Aug. 17, 2007.
5
1
Compact is the 2005 product of the Council of Great Lakes Governors (Council),6 a
working group put together in reaction to the proposed 1998 Nova Group diversion of
Great Lakes water to Asia via “bulk ocean-going freighters.”7 While the Nova Group
managed to obtain a permit for fifty tanker loads of Great Lakes water totaling some 156
million gallons per year from the Ontario provincial government, the permit was
rescinded following massive public outcry.8 Congress responded by passing a
prohibition on diversions of Great Lakes water without the approval of all eight Great
Lakes Governors, and called on both State and Provincial Governors to develop a
comprehensive water management plan for the Great Lakes.9
Diversion via super tanker, however, is but the latest chapter in a long history of
Great Lakes diversion scares. In 1985 New York City proposed diverting water from
Lake Ontario to deal with drought conditions.10 In 1976 the U.S. Army Corps of
Engineers proposed diverting Great Lakes water for irrigation purposes to the High Plains
states.11 In the 1960’s a “Grand Canal” linking Hudson Bay to Arizona via Lake Superior
was proposed.12 The 1960’s also produced NAWAPA, the North American Water and
Power Alliance Plan, which was “the most grandiose and the most ludicrous” of all
Additionally, Ontario Premier Dalton McGuinty signed the sister Great Lakes-St. Lawrence River Basin
Sustainable Water Resources Agreement into law on June 4, 2007. Press release of Great Lakes-St.
Lawrence River Water Resources Regional Body available at
http://www.cglg.org/projects/water/GLSLRWRRB/docs/Regional_Body_Press_Release_Ontario6-8-07.pdf
(last viewed Sept. 13, 2007).
6
Council of Great Lakes Governors home page available at http://www.cglg.org/index.asp (last viewed
Sept. 13, 2007).
7
Peter Annin, The Great Lakes Water Wars 193-194 (Island Press 2006).
8
Michigan Land Use Institute, available at http://mlui.org/pubs/specialreports/waterdiversion/page1.asp
(last viewed Oct. 1, 2007).
9
Water Resources Development Act of 1986, §1109, 42 USC §1962d-20 (1986) (amended 2000).
10
Peter Annin, The Great Lakes Water Wars 78-79 (Island Press 2006).
11
Peter Annin, The Great Lakes Water Wars 68-69 (Island Press 2006).
12
Peter Annin, The Great Lakes Water Wars 60-61 (Island Press 2006).
2
proposed diversions to date.13 NAWAPA would have linked rivers in Alaska and the
Canadian Rockies south to Arizona and east through the Great Lakes.14 While none of
these schemes came to pass, one observer has since noted “I’m not going to suggest
nobody is going to do it, as crazy and uneconomical [as] it is. The landscape is littered
with projects that don’t make economic sense.”15 More recently the “water mining” of
groundwater for export by bottled water companies such as Nestle has taken center stage
in the fight over Great Lakes water resources.16 At its most basic level, the purpose of the
Compact is to put an end to all such diversion proposals and keep Great Lakes water
within the Great Lakes Basin.17
Just as there is a long history of diversion proposals, there is an even longer
history of State, Federal and International effort to cooperatively manage the Great
Lakes. The International Joint Commission (IJC),18 for instance, was formed between the
United States and Canada with the adoption of the International Boundary Waters Treaty
of 1909.19 The treaty was designed to “provide the principles and mechanisms to help
resolve disputes and to prevent future ones, primarily those concerning water quantity
13
Peter Annin, The Great Lakes Water Wars 58-59 (Island Press 2006).
Peter Annin, The Great Lakes Water Wars 78-79 (Island Press 2006).
15
Dr. Peter Gleick, President and Founder of the Pacific Institute and member of the Water Science and
Technology Board of the U.S. National Academy of Science, quoted by Tom Henry, The Future of the
Great Lakes: Who Will Control the Water?, Toledo Blade, June 10, 2001, available at
http://www.heatisonline.org/contentserver/objecthandlers/index.cfm?id=3723&method=full (last viewed
Sept. 13, 2007.
16
See the ongoing saga of Michigan Citizens for Water Conservation v. Nestle Waters North America, Inc.,
709 NW2d 174 (Mich. App. 2005), 737 NW2d 447 (Mich. 2007). Water mining, or overdrafting, “means
withdrawing water from an aquifer at a rate greater than its rate of natural withdrawal.” Waters and Water
Rights, Volume 3, § 18.04.
17
Compact Article 4, Section 4.2(1)(c) available at http://www.cglg.org/projects/water/docs/12-1305/Great_Lakes-St_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Sept. 13, 2007).
18
International Joint Commission available at http://www.ijc.org/ (last viewed Oct. 1, 2007).
19
International Boundary Waters Treaty of 1909 available at http://www.ijc.org/rel/agree/water.html (last
viewed Oct. 1, 2007).
14
3
and water quality along the boundary between Canada and the United States.”20 The IJC
is also responsible for implementing the Great Lakes Water Quality Agreement of 1978
that seeks “to restore and maintain the chemical, physical and biological integrity of the
Great Lakes Basin Ecosystem.”21 The IJC also implements the transboundary CanadaUnited States Air Quality Agreement of 1991.22
Another organization, the Great Lakes Commission, was established in 1955 by
Minnesota, Wisconsin, Michigan, Illinois and Indiana to implement the Great Lakes
Basin Compact (not to be confused with the Compact at hand),23 an agreement designed
to improve navigation, maintain fisheries, combat pollution, develop hydroelectric power
and stabilize lake levels.24 Interestingly, the 1955 Compact effectively forecast our
current discussion in two key ways. First, by treating the Great Lakes not just as lakes,
but the Great Lakes region collectively as a basin.25 Second, by encouraging each
20
At http://www.ijc.org/rel/agree/water.html (last viewed Oct. 1, 2007).
Great Lakes Water Quality Agreement of 1978 available at http://www.ijc.org/rel/agree/quality.html
(last viewed Oct. 1, 2007). The language used here tracks verbatim the opening language of the Federal
Water Pollution Control Act Amendments of 1972 (Clean Water Act), 33 U.S.C. § 1251(a) (2007).
22
Canada-United States Air Quality Agreement of 1991 available at
http://www.ijc.org/en/activities/aqa/report_rapport2006.php (last viewed Oct. 1, 2007).
23
Ohio, Pennsylvania and New York were on board by 1963. The Great Lakes Basin Compact was later
approved by Congress under Pub. L. 90-419, July 24, 1968, 82 Stat. 414.
24
The Great Lakes Commission is still in operation; See http://www.glc.org/about/glbc.html (last viewed
Oct. 1, 2007).
25
Great Lakes Basin Compact, Article 1(1, 2): “The purposes of this compact are, through means of joint
or cooperative action:
1. To promote the orderly, integrated, and comprehensive development, use, and conservation of the water
resources of the Great Lakes Basin (hereinafter called the Basin).
21
2. To plan for the welfare and development of the water resources of the Basin as a whole as well as for
those portions of the Basin which may have problems of special concern.” Available at
http://www.glc.org/about/glbc.html (last viewed Oct. 1, 2007).
4
member state to follow the recommendations of the Commission regarding out of basin
diversions of water.26
While Minnesota and Illinois’ passage of the Compact were important steps in the
process, ultimate adoption of the Compact remains a relatively distant prospect.27 The
Compact needs the approval of the other six Great Lakes states, and of the United States
Congress before it can take effect.28 The Compact is currently wending its way through
the state legislatures of Michigan, Indiana and Pennsylvania.29 New York passed bills in
both the Assembly and Senate this year before the Assembly decided to reconsider the
Compact.30 Ohio passed legislation to adopt the Compact in the House last session by an
81-5 vote, however the corresponding Senate bill died in committee.31 Wisconsin is the
only remaining state that has not introduced legislation to adopt the Compact.32 While
Great Lakes Basin Compact, Article 7(8): “Each party state agrees to consider the action the Commission
recommends in respect to: Diversion of waters from and into the Basin.” Available at
http://www.glc.org/about/glbc.html (last viewed Oct. 1, 2007).
27
Minnesota passed HF 0110 on Feb. 01, 2007 and SF 0038 on Feb. 15, 2007. Governor Pawlenty signed
on Feb. 20, 2007. Codified at M. S. A. § 103G.801 (2007). Available at http://www.leg.state.mn.us/ (last
viewed Sept. 13, 2007). Illinois passed HB 0375 on May 22, 2007, and Governor Blagojevich signed as
Public Act 95-0238 on Aug. 17, 2007. Available at http://www.ilga.gov/ (last viewed Sept. 13, 2007).
28
Tom Meersman, Minnesota Oks Great Lakes pact, Minneapolis Star Tribune, Feb. 20, 2007, at 4B. The
eight Great Lakes states are: Minnesota, Michigan, Wisconsin, Illinois, Indiana, Ohio, Pennsylvania and
New York. The Canadian Provinces of Ontario and Quebec, while not signatories to the Compact, are
partners in the similarly worded Great Lakes-St. Lawrence River Basin Sustainable Water Resources
Agreement. Available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Sustainable_Water_Resources_Agreement.pdf (last viewed Sept. 13, 2007).
29
Michigan: SB 0212 was introduced on Feb. 20, 2007, and referred to the Committee on Natural
Resources and Environmental Affairs. See also HB 4336 which was referred to the Committee on Great
Lakes and Environment on Feb. 28, 2007. Available at http://www.legislature.mi.gov/ (last viewed Sept.
13, 2007). Indiana: SB 0022 and SB 0515 were both referred in January 2007 to the Committee on Energy
and Environmental Affairs. Available at http://www.in.gov/legislative/ (last viewed Sept. 13, 2007).
Pennsylvania: HB 1705 was referred to the Intergovernmental Affairs Committee on July 6, 2007.
Available at http://www.legis.state.pa.us/ (last viewed Sept. 13, 2007).
30
New York passed A7266 on April 23, 2007 and S4324 on July 16, 2007 in special session before sending
the bills to the Ways and Means Committee for reconsideration. Available at http://assembly.state.ny.us/
(last viewed Sept. 13, 2007).
31
Ohio passed HB 574 (sponsored by Representative Dolan), but not SB 319 (sponsored by Senator
Spada). Available at http://www.legislature.state.oh.us/index.cfm (last viewed Oct. 1, 2007).
32
Wisconsin State Senator Neal Kedzie chaired an Interim Study Committee on the Compact that was
adjourned without agreement on Sept. 10, 2007. Available at
http://www.legis.state.wi.us/lc/committees/study/2006/GLAKE/index.htm (last viewed Oct. 1, 2007).
26
5
something as complex as an interstate water compact can well be expected to take some
time, Wayne State University Environmental Law Professor Noah Hall notes “It's OK to
take a year or two to sort this out, but then they'd better buckle down and get on the same
page. The real attacks are going to come in Congress, from states outside the region who
don't want to see the Great Lakes locked up.”33
The most outspoken opposition to the Compact has come from Ohio State Senator
Tim Grendell.34 His objections are twofold. First, that by signing the Compact, Ohio
would be giving up state sovereignty to “a U.N.-like bureaucracy [that] will unduly
restrict Ohioans and Ohio businesses, as well as subject Ohioans and Ohio businesses to
the control of other states and 2 [sic] Canadian provinces.”35 Second, that the language of
the Compact will adversely impact private property rights, and “convert privately owned
lakes, ponds, farm irrigation, drainage ditches, well water and [potentially] wetlands into
public trust property.”36 Essentially, Grendell argues that an assertion of the public trust
33
US Water News Online, Debate Over Water Compact Tests Unity of Great Lakes Region, April 2007,
available at http://www.uswaternews.com/archives/arcsupply/7debaover4.html (last viewed Oct. 3, 2007).
34
Senator Grendell appears to be the self-styled champion of property rights in Ohio. The website from his
failed 2006 campaign for the Republican nomination for Ohio Attorney General asserts he “Sponsored and
passed legislation placing a moratorium on the use of eminent domain by the state; protecting the property
rights of citizens.” Available at http://www.timgrendell.com/ (last viewed Oct. 9, 2007).
35
Letter from Tim Grendell addressed to Fellow Senators (undated), a copy of which was obtained from
Aaron Marshall of the Cleveland Plain Dealer (on file with author). While the issue of state sovereignty is
beyond the scope of this article, it is worth noting that interstate compacts are entirely commonplace and
are addressed in Article I, sect. 10, cl. 3 of the United States Constitution. See Jeffrey Uhlman
Beaverstock, LEARNING TO GET ALONG: ALABAMA, GEORGIA, FLORIDA AND THE
CHATTAHOOCHEE RIVER COMPACT, 49 ALLR 993 (Spring 1998).
“The first time the interstate compact process was used for the settlement of a water dispute was in 1922
for the Colorado River Compact. The majority of water compacts have taken place in the western United
States, where all of the western states have participated in at least one interstate water compact.”
36
Aaron Marshall, Legislator holding up Great Lakes water pact, Cleveland Plain Dealer, Dec. 11, 2006, at
A1. It should be kept in mind that the public trust has seldom been applied against small domestic users:
“Expansive as the courts have been in support of the public right to use water in place, clearly not every
body of water is subject to the public right. Small ponds and creeks on private land, for example, are
ordinarily not open to public use on the basis of this right.” Waters and Water Rights, Volume 4, pg. 6.
6
doctrine over state water law would be “flat-out un-American” because it would amount
to a fifth amendment taking of property without just compensation.37
Some have dismissed Grendell’s objections out of hand as “conspiracy theory.”38
Fellow Ohio Republican lawmaker Matthew Dolan said: “Grendell’s concerns are
overblown. The language being passed is very clear that whatever property rights we
have will be completely intact once this compact is passed.”39 The Compact itself
appears to address Grendell’s concerns in Article 8, Section 8.1(4):
An approval by a Party or the Council under this Compact does not give
any property rights, nor any exclusive privileges, nor shall it be construed
to grant or confer any right, title, easement, or interest in, to or over any
land belonging to or held in trust by a Party; neither does it authorize any
injury to private property or invasion of private rights, nor infringement of
federal, State or local laws or regulations; nor does it obviate the necessity
of obtaining federal assent when necessary.40
Despite these ostensible assurances, it is unclear what the Compact will mean for
“private property rights” in water generally or in groundwater specifically. It is not at all
certain whether “private property rights” in the traditional property sense even exist in
water.41 The property right, or ownership, of water is frequently thought to be
usufructuary, or use based, rather than absolute.42 Professor Sax notes:
Water is not like a pocket watch or a piece of furniture, which an owner
may destroy with impunity. The rights of use in water, however long
standing, should never be confused with more personal, more fully owned,
37
United States Coast Guard Auxiliary National Legislative Liaison Committee, Second Quarter Report,
2007, available at http://www.legislative.auxnaco.org/oh.html (last viewed Nov. 12, 2007).
38
Aaron Marshall, Legislator holding up Great Lakes water pact, Cleveland Plain Dealer, Dec. 11, 2006, at
A1.
39
Aaron Marshall, Legislator holding up Great Lakes water pact, Cleveland Plain Dealer, Dec. 11, 2006, at
A1.
40
Compact (emphasis added) available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 3, 2007).
41
Cynthia L. Koehler, WATER RIGHTS AND THE PUBLIC TRUST DOCTRINE: RESOLUTION OF
THE MONO LAKE CONTROVERSY, 22 Ecology L. Q. 541, 555 (1995).
42
Eddy v. Simpson, 3 Cal. 249, 252 (1853).
7
property. Far from being a sudden and unpredictable change in the
definition of property, recognition of the right of the state to protect its
water resources is only a restatement of a familiar and oft-stated public
prerogative.43
As we shall see, the use of groundwater is governed by a mash of conflicting doctrine,
statute and case law built over the centuries on more settled surface water law. What an
assertion of public trust authority over groundwater might mean in each of the eight Great
Lakes states is even less understood. While Senator Grendell’s concerns may be
“overblown,” the questions raised are both legitimate and timely. My purpose here is to
examine how the public trust doctrine asserted by the Compact will impact existing
groundwater law in the Great Lakes Basin, and whether this assertion will amount to a
fifth Amendment taking of private property.44
II. COMPACT MECHANICS
It may be difficult for the average citizen to understand why the Great Lakes
Basin needs the extraordinary protection offered by the Compact. The first consideration
is the human dimension; more than 35 million Americans living in the Basin states
depend upon the Great Lakes for their drinking water supply.45 The Basin is home to
thirty-five federally recognized Indian Tribes.46 The Lakes support fishing, agriculture,
shipping and tourism.47 Recreational boating alone is a $35 billion industry that supports
43
Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 Envtl. L. 473, 482 (1989).
A watershed map of the Great Lakes Basin can be found at
http://www.seagrant.wisc.edu/Communications/greatlakes/GlacialGift/map.html (last viewed Oct. 9, 2007).
45
Great Lakes Regional Collaboration Strategy, 3 (2005).
46
Great Lakes Regional Collaboration Strategy, 9 (2005).
47
Great Lakes Regional Collaboration Strategy, 9 (2005).
44
8
over 246,000 jobs.48 Fully one quarter of all manufactured goods produced in the United
States come from the Basin.49
The health of the resource itself is our other consideration. As big as the Great
Lakes seemingly are, they constitute an extremely fragile eco-system:
The Great Lakes are an essentially closed but interconnected system.
They were formed by the melting of glaciers, and only one percent of the
water is renewed each year by rain or snow. Only about the same amount
flows out to sea.50
With one percent coming in naturally, and one percent going out naturally, we’re not left
very much water to play with. Add to that the mounting scientific evidence of the
deleterious impact global warming and climate change will have on water levels in the
basin.51 Suddenly the Compact’s goal of preserving the integrity of the Great Lakes by
retaining ground and surface water inside the Basin makes sense in a way we can all
easily understand. For once the resource is destroyed, there is no bringing it back.
The mechanics of the Compact are designed to retain state control over water use
management- but with Council oversight.52 This cooperative planning approach stresses
interstate, and international, comity53 based on the best available science.54 The
Governors of the Great Lakes states shall comprise the membership of the Council,55 with
48
Great Lakes Regional Collaboration Strategy, 9 (2005).
Lee Botts and Paul Muldoon, Evolution of the Great Lakes Water Quality Agreement 2 (Michigan State
Press 2005).
50
Lee Botts and Paul Muldoon, Evolution of the Great Lakes Water Quality Agreement 3 (Michigan State
Press 2005).
49
51
Noah Hall, Passage of Water Compact Essential to Mitigate Impacts of Global Warming, States New
Report, National Wildlife Federation, Nov. 27, 2007. Available at:
http://www.nwf.org/news/story.cfm?pageId=8196E590%2DF1F6%2D7B10%2D3EDF27F8039B6A0C
(last viewed Nov. 27, 2007).
52
Compact Article 1, Section 1.3(2)(d).
53
Compact Article 1, Section 1.3(2)(g).
54
Compact Article 1, Section 1.3(2)(a).
55
Compact Article 2, Section 2.2.
9
decision-making power vested in a one-person one-vote simple majority.56 The Council
“may promulgate and enforce such rules and regulations as may be necessary for the
implementation and enforcement of [the] Compact.”57 Each member state will report to
the Council the status of their water management programs and implementation of their
Compact obligations every five years.58 The Council will make recommendations and
assist the states in achieving Compact compliance.59
Upon ratification, each member state will regulate new or increased withdrawals
and diversions in accordance with the Compact.60 All new or increased diversions are
prohibited except as in accordance with the Compact.61 The default threshold for
diversion regulation is 100,000 gallons per day or greater, averaged over a 90-day
period.62 Any new or increased consumptive use of 5million gallons per day or greater
averaged over a 90-day period will require Council approval.63 Communities that straddle
the Basin boundary will be permitted to use Basin water provided the water is returned to
the Basin, “minus an allowance for consumptive use.”64 Intra-Basin transfers of more
than 100,000 gallons per day averaged over a 90-day period will require unanimous
Council approval.65 Bulk water removal in any container larger than 5.7 gallons will be
56
Compact Article 2, Section 2.4(1-2).
Compact Article 3, Section 3.3(1).
58
Compact Article 3, Section 3.4(1).
59
Compact Article 3, Section 3.4(2).
60
Compact Article 4, Section 4.3(1).
61
Compact Article 4, Section 4.8.
62
Compact Article 4, Section 4.10(2).
63
Compact Article 4, Section 4.6(1).
64
Compact Article 4, Section 4.9(1)(a). New Berlin and Waukesha, WI have become the most visible flash
points on the issue of straddling communities. While both cities are within twenty miles of Lake Michigan,
they are outside of the basin. See Dennis A. Shook, New Berlin’s Water Woes May Not Be Over, SheperdExpress.com, July 19, 2007. Available at http://www.midwestadvocates.org/media/coverage/2007/7-1907%20Shepherd%20Express%20New%20Berlin's%20Water%20Woes%20May%20Not%20Be%20Over.h
tm (last viewed Nov. 23, 2007).
65
Compact Article 4, Section 4.9(2)(b) and Section 4.9(2)(c)(iv).
57
10
treated as a diversion.66 Each member state may, at their discretion, regulate containers
smaller than 5.7 gallons in size.67 Exceptions to Article 4 withdrawal and diversion
limitations will be made for humanitarian, firefighting and emergency response
purposes.68
Viewed as a whole, the provisions of the Compact clearly could be taken to mean
the Council envisions an all-encompassing public trust authority over water throughout
the Great Lakes Basin- to include groundwater. Article 1, Section 1.3(1)(a) of the
Compact states “the Waters of the Basin are precious public natural resources shared and
held in trust by the States.”69 Article 1, Section 1.2 defines “Waters of the Basin” as “the
Great Lakes and all streams, rivers, lakes, connecting channels and other bodies of water,
including tributary groundwater, within the basin.”70 Article 1, Section 1.3(1)(b) states
“The Waters of the Basin are interconnected and part of a single hydrologic system.”71
Article 4, Section 4.2(1)(c) states the “objectives are based on the goals of retaining the
quantity of surface water and groundwater in the Basin.”72 Article 1, Section 1.2 defines
“Basin” as “the watershed of the Great Lakes and the St. Lawrence River upstream from
Compact Article 4, Section 4.12(10). This has become popularly known as the “bottled water loophole.”
See Editorial, Plug leak from state's lakes: Bottled water, Detroit Free Press, Nov. 12, 2007. Available at:
http://www.freep.com/apps/pbcs.dll/article?AID=/20071112/OPINION04/711120309/1068/OPINION
(last viewed Nov. 15, 2007). As the Compact states that water is not a product, the growing bottled water
industry constitutes just one of the internal tensions at work here. See Compact Article 1, Section 1.2.
67
Compact Article 4, Section 4.12(10).
68
Compact Article 4, Section 4.13(2).
69
Compact (emphasis added) available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 9, 2007).
70
Compact (emphasis added) available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 9, 2007).
71
Compact available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 9, 2007).
72
Compact available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 9, 2007).
66
11
Trois-Rivieres, Quebec within the jurisdiction of the parties.”73 These five provisions, if
not at odds with Article 8, Section 8.1(4) regarding private property rights now, certainly
provide a framework for change- and conflict- in the future.
III. THE PUBLIC TRUST DOCTRINE
The public trust doctrine has alternately been viewed as a part of trust law, a part
of constitutional law, a standard of review in administrative law, an extension of the
states inherent police power, and as a public easement rooted in property law.74
Throughout legal literature and decision, the public trust doctrine has been stated
variously as a public servitude, a reserved easement in the State, a public right, public
interest, public easement, public trust easement, public burden upon the land, a States
trust obligation, a States affirmative fiduciary obligation,75 and a States police power.76
73
Compact available at http://www.cglg.org/projects/water/docs/12-13-05/Great_LakesSt_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 9, 2007).
74
James L. Huffman, A Fish Out Of Water: The Public Trust Doctrine In A Constitutional Democracy, 19
Envtl. L. 527 (1989). Professor Huffman disputes most of the following in Speaking of inconvenient truths
-- a history of the public trust doctrine:
There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint
on alienation of state owned waters and lands is belied by a history of pervasive private ownership in
both Rome and England. Magna Charta had little or nothing to do with such public rights, nor is there
significant support in Bracton, Hale or Blackstone for the imagined doctrine. The one concept of
English law on which the modern public trust doctrine relies – the prima facie rule pursuant to which
title to submerged lands is presumed to be in the Crown absent a showing to the contrary – was a 16th
century fabrication that did not take hold in England until late in the 19 th century, well after American
law had developed on its own.
Abstract. Unpublished (2007). Available at http://works.bepress.com/james_huffman/1 (last viewed Nov.
12, 2007).
75
The Public Trust Doctrine has defied definitive legal statement over the centuries. Rather, it seems to be
a malleable conception of the public need as it then exists at various points in time. “The law has
conformed to the human need.” Waters and Water Rights, Volume 4, § 29.02(b).
76
A state’s traditional police power to regulate for the public health, safety and welfare is really a different
doctrine altogether and is used rather loosely in this context to the substantial confusion of everyone
involved. For our purposes here, the police power should be defined as “the authority by which a state or
local government, for an appropriate public purpose, regulates but does not ‘take’ property.” David A.
Thomas, Finding More Pieces For The Takings Puzzle: How Correcting History Can Clarify Doctrine, 75
U. Colo. L. Rev. 497 at 499 (2004).
12
According to most formulations of the doctrine, each state gained sovereign title to public
trust lands and waters either at the time of the American Revolution, or upon entry into
the Union under the “equal footing” doctrine.77
Whatever its proper legal placement, the public trust is a common law doctrine
that places public rights to a natural resource over, or superior to, private rights.78 The
doctrine is a historical, societal recognition “that in order to serve certain public
objectives some property must be controlled by the public.”79 The public trust doctrine
has been recognized throughout US history, though each state has treated the doctrine
differently.80 Important statements of the doctrine can be found in Arnold v. Mundy
(1821),81 Martin v. Waddell (1842),82 Shively v. Bowlby (1894),83 and Phillips Petr. Co.
v. Mississippi (1988).84 The most famous US Supreme Court statement on the public trust
doctrine is found in Illinois Central Railroad v. Illinois (1892):
77
Pollard v. Hagan, 44 U.S. 212, 229 (1845) and Utah Division of State Lands v. United States, 482 U.S.
193,195 (1987). This is the point at which our discussion branches from the parallel track of the federal
Commerce Clause and the test of navigability found in The Danial Ball, 77 US 557 (1870). Title resides in
the state as regards the beds and banks of navigable-in-fact waters. Id.
78
Jan G. Laitos, Natural Resources Law 25 (West Group 2002).
79
Jan G. Laitos, Natural Resources Law 26 (West Group 2002).
80
Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) seems to constitute the baseline federal standard
which states have to follow in formulating their own public trust standards. See Robin Kundis Craig, A
COMPARATIVE GUIDE TO THE EASTERN PUBLIC TRUST DOCTRINES:
CLASSIFICATIONS OF STATES, PROPERTY RIGHTS, AND STATE SUMMARIES, Penn State
Environmental Law Review, Forthcoming, 4-5. Available at SSRN: http://ssrn.com/abstract=1008161 (last
viewed Nov. 11, 2007). This point is disputed however in Waters and Water Rights, Volume 4, §
30.02(b)(1) which states: “Despite the plausibility of treating the statements in Illinois Central on the
fiduciary obligation of a state as an expression of federal law, they have not been treated subsequently as
binding on the states.”
6 N.J.L. 1. Arnold is regarded as “the foundation case for the public trust doctrine in the United States.”
Waters and Water Rights, Volume 4 § 30.02(c).
82
41 US 367. Martin was the first US Supreme Court case to affirm the rule of Arnold. Waters and Water
Rights, Volume 4 § 30.02(d).
83
152 US 1. Shively endorsed the rule of Illinois Central: “the state’s title to tidelands may be alienated, but
subject…to the paramount right of navigation and commerce.” Waters and Water Rights, Volume 4 §
30.02(d)(2).
84
484 US 469. Phillips is the latest US Supreme Court endorsement of Arnold. Waters and Water Rights,
Volume 4 § 30.02(c).
81
13
The state can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and the soils under
them…than it can abdicate its police powers in the administration of
government and the preservation of the peace.85
Illinois Central is particularly important for our purposes here as the first articulation that
the public trust doctrine would be applied from the seas and oceans to the Great Lakes.86
The public trust doctrine dates back to Roman times, when the right of the people
to use of the tide lands and navigable waters was first established: “By the laws of nature
these things are common to all mankind; the air, running water, the sea, and consequently
the shores of the sea. No one, therefore, is forbidden to approach the seashore.”87 Use of
the common water resource typically meant navigation, commerce, and fishing.88
The doctrine of the Justinian law books concerning the sea may be stated,
then, as follows: The sea is res communis, incapable of being
appropriated, open to the common use of all men. For this reason, the
shores of the sea have the same legal status. That is to say, the shores of
the sea are common to all men, both as to ownership and as to use.89
The public trust doctrine extended from the reaches of the sea landward over time, much
like the development of inland-marine insurance (indeed, much like life itself).90 This
growth of the doctrine in English common law was due to a paucity of land based,
riparian law well into the Industrial Revolution.91 More recently, the public trust has been
85
146 U.S. 387, 453 (1892).
146 U.S. 387, 435 (1892).
87
The Institutes of Justinian, Institutes 2.1.1. Available at:
http://www.ohiodnr.com/coastal/publictrust/overview.htm (last viewed Oct. 9, 2007).
88
John R. Kennel and Lucas Martin, CJS NAVAG § 21 (2007).
89
Percy Thomas Fenn, Jr., Justinian and the Freedom of the Sea, The American Journal of International
Law, Vol. 19, No. 4. (Oct., 1925), pp. 716-727 at 727. Available at (JSTOR)
http://links.jstor.org/sici?sici=0002-9300(192510)19%3A4%3C716%3AJATFOT%3E2.0.CO%3B2-E
(last viewed Nov. 23, 2007).
90
Harrison C. Dunning describes the process thusly: “The maturing of the common law concerning inland
waterways is rather like the maturing cycle in the life of an anadromous fish. The salmon grows and takes
on substance in the open sea, then moves to coastal waters and finally to inland waterways that are
navigable to it.” Waters and Water Rights, Volume 4, § 29.02(b).
91
Waters and Water Rights, Volume 4, § 29.02(b).
86
14
invoked to protect recreation, environmental quality and scientific research.92 An
assertion of the public trust as regards the consumptive use of fresh water, as in the
Compact, however, is relatively new.93 The closest ontological94 precedent to the
Compact may be United Plainsmen Ass'n v. North Dakota State Water Conservation
Commission.95 The North Dakota Supreme Court held that while the statutory
Declaration of State Water Resources Policy96 was merely “hortatory and precatory, but
not mandatory,” that “the discretionary authority of state officials to allocate vital state
resources is not without limit but is circumscribed by what has been called the Public
Trust Doctrine.”97 The Court further held:
[T]he Public Trust Doctrine requires, at a minimum, a determination of the
potential effect of the allocation of water on the present water supply and
future water needs of this State. This necessarily involves planning
responsibility. The development and implementation of some short- and
long-term planning capability is essential to effective allocation of
resources without detriment to the public interest in the lands and waters
remaining.98
The Supreme Court of California in National Audubon Society v. Superior Court
of Alpine County (popularly referred to as the Mono Lake decision) was possibly the first
court to consider whether the public trust doctrine could be applied to the diversion of
92
Marks v. Whitney, 491 P.2d 374 at 380 (1971):
There is a growing public recognition that one of the most important public uses of the tidelands-a
use encompassed within the tidelands trust-is the preservation of those lands in their natural state,
so that they may serve as ecological units for scientific study, as open space, and as environments
which provide food and habitat for birds and marine life, and which favorably affect the scenery
and climate of the area. Id.
93
Kenneth A. Manaster and Danial P. Selmi, 1 STENVNL § 4:20 (2006).
2. (From philosophy) An explicit formal specification of how to represent the objects, concepts and other
entities that are assumed to exist in some area of interest and the relationships that hold among them.
Available at http://dictionary.reference.com/browse/ontology (last viewed Nov. 20, 2007).
95
247 N.W.2d 457 (1976).
96
ND ST 61-01-26 (current through 2007 regular session).
97
247 N.W.2d 457, 460 (1976).
98
247 N.W.2d 457, 462 (1976).
94
15
non-navigable waterways.99 The Court held “that the public trust doctrine, as recognized
in California decisions, protects navigable waters from harm caused by diversion of nonnavigable tributaries.”100 A recent case from Hawaii, In re Waiola O Molokai, Inc., held
the public trust doctrine could be asserted to protect groundwater wells and aquifers from
interfering uses.101 Mineral County v. Nevada cast the public trust net even wider,
writing that the doctrine protects much more than use; rather the public trust protects our
common heritage in all natural resources.102 While all of these opinions are without
controlling authority in the Great Lakes states- they provide persuasive moral and
precedential authority for the aspirational goals articulated in the Compact.
It is important to remember that the public trust doctrine has been articulated
differently in each of the Great Lakes states. Professor Robin Craig notes:
[T]here is no common ‘eastern public trust doctrine.’ Instead, the eastern
states vary widely in the tests they employ to establish state title, the lines
they draw between public and private title in submerged lands, the
relationship between title to submerged lands and public trust rights, and
the public uses of the relevant waters that they will protect.103
Of the eight Great Lakes states, four (Illinois, Minnesota, Pennsylvania and Wisconsin)
provide for the public trust in their state Constitutions.104 Michigan’s Constitution
includes police power language that has been construed by the Michigan Supreme Court
as being public trust language.105 The three remaining states (Indiana, New York, and
99
658 P.2d 709, 720 (1983).
658 P.2d 709, 721 (1983).
101
83 P.3d 664, 694 (2004).
102
20 P.3d 800, 809 (2001).
103
Robin Kundis Craig, A COMPARATIVE GUIDE TO THE EASTERN PUBLIC TRUST
DOCTRINES:
CLASSIFICATIONS OF STATES, PROPERTY RIGHTS, AND STATE SUMMARIES, Penn State
Environmental Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1008161 (last
viewed Nov. 11, 2007).
104
Robin Kundis Craig, Appendix: State-by-State Summary Of Eastern States’ Public Trust Doctrines.
105
Robin Kundis Craig, Appendix: State-by-State Summary Of Eastern States’ Public Trust Doctrines.
100
16
Ohio) have codified the public trust via statute.106 Additionally, six of the Great Lakes
states (Ohio, Indiana, Illinois, Michigan, Wisconsin and Minnesota) can cite to The
Northwest Ordinance of 1787 as precedential authority for their states’ public trust
doctrines:107
The navigable waters leading into the Mississippi and St. Lawrence, and
the carrying places between the same, shall be common highways and
forever free, as well to the inhabitants of the said territory as to the citizens
of the United States, and those of any other States that may be admitted
into the confederacy, without any tax, impost, or duty therefor.108
The evolution of the public trust doctrine over time from a protection of use to a
protection of the integrity of the resource itself from over-taxing consumption is an
appropriate legal response to the changing needs of society.109 Professor Sax writes:
When the public interest was seen as primarily developmental, people
were permitted to use water in the service of development. They were not,
however, being vested with a private property right that could be asserted
against that interest when the public goals changed. They obtained a right
because they were making a use that was at the time compatible with the
public interest.
Their water right extended only as far as that
110
compatibility.
The Compact, when passed, will become the latest articulation of societal goals within
the Great Lakes Basin. The difficulty involved in implementing those goals into eight
different state groundwater use schemes is where we turn next.
IV: GROUNDWATER DOCTRINES
Robin Kundis Craig, Appendix: State-by-State Summary Of Eastern States’ Public Trust Doctrines.
Though apparently only Wisconsin and Minnesota do so explicitly. See WI CONST Art. IX, s1 and
M.S.A. Const. Art. 2, § 2. While the half of Minnesota east of the Mississippi River was part of the
Northwest Territory, the State of Minnesota was not actually created out of the Northwest Territory. The
Northwest Ordinance allowed only five states to be created from the territory. 1 Stat. 50 at 53 (1789).
108
1 Stat. 50 at 52 (1789). The Northwest Ordinance was adopted under the Articles of Confederation and
incorporated as law by the First Congress of the United States.
109
Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 Envtl. L. 473, 475 (1989).
110
Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 Envtl. L. 473, 476 (1989).
106
107
17
People must be made to realize that water is never a free good, is never
cheap, except in terms of political subsidization, and, in the case of
aquifers… is a loan whose costs are pushed-off onto future generations in
the region.111
The common law, combined with statute, has evolved to produce five broad
groundwater use rules: the English, or Absolute Ownership Rule, the Reasonable Use
rule, the Correlative Rights doctrine, the mixed reasonable/correlative rights, or
American Rule, and the Restatement (Second) of Torts doctrine.112 It is worth noting that
these categories are often broken down differently depending on the scholar in
question.113 This legal uncertainty serves to illustrate the ever-shifting needs of society
combined with a growing awareness and understanding of groundwater hydrology over
the past century and a half.114
A. The English Rule
The English, or Absolute Ownership Rule (also Absolute Dominion Rule), allows
the surface owner free reign over his use of the groundwater below, even to the detriment
of his neighbor (absent malice or waste).115 The rule seems to be based mainly on a
dearth of scientific knowledge regarding underground “percolating” and “oozing” waters:
111
Waters and Water Rights, Volume 3, s 19.06. Italics in original.
George A. Gould, Douglas L. Grant and Gregory S. Weber, Cases And Materials On Water Law 332336 (Thompson/West 2005) 7th ed.
113
In Legal Control of Water Resources by Joseph L. Sax, Barton H. Thompson, et al, groundwater is
categorized under the headings Rule of Capture, American Reasonable Use, Correlative Rights,
Restatement 2nd of Torts, and Prior Appropriation, 415-417. (Thompson/West 2006) 4th ed. Waters and
Water Rights Volume 3 on Groundwater breaks the headings into Absolute Dominion, Correlative Rights,
Reasonable Use, and the Appropriative Doctrine, v.
114
See Waters and Water Rights, Volume 3 Groundwater, § 20.02 Judicial Choices Relative to Knowledge
Concerning Groundwater, and § 20.03 The Mid-Nineteenth Century Choices and the Knowledge
Underlying Them.
115
State v. Michels Pipleline Construction, Inc., 217 N.W.2d 339 (1974), citing Acton v. Blundell, 12 Mees.
& W. 324 (Ex. 1843). CJS WATERS § 206: “The waste of underground water is against public policy, and
a landowner has, in general, no right to commit such waste.”
112
18
Because the existence, origin, movement and course of such waters, and
the causes which govern and direct their movements, are so secret, occult
and concealed, that an attempt to administer any set of legal rules in
respect to them would be involved in hopeless uncertainty, and would be,
therefore, practically impossible.116
This rule is essentially the old English rule of capture, imported from fox hunting to
groundwater: “for a landowner’s pump could induce water under the land of his neighbor
to flow to his well- water that was in theory the neighbors property while it remained in
place.”117
Viewed from a real property perspective, the axiom cujus est solum, ejus est
usque ad coelum et ad inferos- to whomsoever the soil belongs, he owns also to the sky
and to the depths- still applies on the inferno side.118 This stance is perhaps best reflected
in the 1866 case of Pixley v. Clark that held: “[water] is the same as land, and cannot be
distinguished in law from land. [The] owner of the land is the absolute owner of the soil
and of percolating water, which is a part of, and not different from, the soil.”119
From another perspective the property aspect of the English Rule is a red herringwhere “absolute ownership is more a rule of non-liability in tort than a rule in property
ownership.”120 Eric Opiela argues convincingly that the English Rule has been distorted
over time “from a mere tort preclusion doctrine into a vested property right” based on a
misreading of Acton v. Blundell.121 Rather than the static approach employed in Pixley,
Acton was really stating that a property right in groundwater only arises when
116
Frazier v. Brown, 12 Ohio St. 294 (1861).
Jesse Dukeminier and James E. Krier, Property 40 (Aspen 2002) 5 th ed.
118
Black's Law Dictionary 378 (6th ed. 1990).
119
35 N.Y. 520, 526 (1866).
120
Legal Control of Water Resources, 415.
121
Eric Opiela, THE RULE OF CAPTURE IN TEXAS: AN OUTDATED PRINCIPLE BEYOND ITS
TIME, 6 U. Denv. Water L. Rev. 87, 89 (2002).
117
19
“subterranean waters…are diverted, retained, or abstracted.”122 Similarly, in Pierson v.
Post the New York Supreme Court preferred the term “occupancy” in describing
ownership of the captured fox ferae naturae rather than the more definite “property,”
further that mere pursuit could not constitute such occupancy ownership in the fox.123
An old Wisconsin case, Huber v. Merkel, provides a good illustration of the
English Rule in action:
From this brief review of the law and the cases relied upon as modifying
the ancient common-law rule as to percolating waters, it seems clear that it
must be held that the appellant had a clear right at common law, resulting
from his ownership of land, to sink a well thereon, and use the water
therefrom as he chose, or allow it to flow away, regardless of the effect of
such use upon his neighbors' wells, and that such right is not affected by
malicious intent. Whether this right results from an absolute ownership of
the water itself, as stated in some of the authorities, or from a mere right to
use and divert the water while percolating through the soil, is a question of
no materiality in the present discussion. In either event, it is a property
right, arising out of his ownership of the land, and is protected by the
common law as such.124
Further, as an article of commerce, the landowner may sell both the groundwater and the
right to pump the groundwater from below his land.125 This right is not without
condition, however, as discussed below.
Texas is the leading state to retain the English Rule, though it has been modifiedand moderated-by statute.126 Even Texas Courts, which are traditionally quite deferential
122
Eric Opiela, THE RULE OF CAPTURE IN TEXAS: AN OUTDATED PRINCIPLE BEYOND ITS
TIME, 6 U. Denv. Water L. Rev. 87, 94 (2002).
123
3 Cai. R. 175 N.Y.Sup. (1805).
94 N.W. 354, 357 (1903). The Huber definition of the English Rule seems to go farther than usual in
that the absence or presence of malice is apparently not a factor to be considered.
125
State v. Michels Pipleline Construction, Inc., 217 N.W.2d 339 (1974). The Supreme Court held that
water is an article of commerce in Sporhase v. Nebraska, 458 U.S. 941, 954 (1982).
126
George A. Gould, Douglas L. Grant and Gregory S. Weber, Cases And Materials On Water Law 333
(Thompson/West 2005) 7th ed.
124
20
to the state legislature, may be on the verge of change.127 The Texas Supreme Court
noted in Sipriano v. Great Springs Waters of America:
The extensive regulation of oil and gas production proves that effective
regulation of migrant substances far below the surface is not only possible
but necessary and effective. In the past several decades it has become
clear, if it was not before, that it is not regulation that threatens progress,
but the lack of it.128
As in Sipriano, groundwater is often analogized to oil and gas:
The rules often have been borrowed from what the law of oil and gas has
provided as in situ conservation measures…this legal borrowing is not
surprising because both geologically and technically a close relationship
has existed from the mid-nineteenth century between drilling for and
producing oil and gas, and drilling for and withdrawing water.129
Even the modern jargon has been appropriated. “Peak water” is now being used in much
the same way “peak oil” has been to denote a non-renewable resource in a permanent
losing cycle of depletion.130 The analogue has its’ limits however. Groundwater is
generally not considered part of the severable oil, gas and mineral estate, except in
instances where the groundwater is used for “secondary recovery operations…necessary
for production of oil and gas.”131
127
Legal Control of Water Resources, 418-419.
1 S.W.3d 775 (Tex. 1999), cited in Legal Control of Water Resources, 419.
129
Waters and Water Rights, Volume 3, s 19.05.
130
See Jon Gertner, The Future is Drying Up, The New York Times Magazine, Oct. 21, 2007. Available at
http://www.nytimes.com/2007/10/21/magazine/21watert.html?pagewanted=1&n=Top/News/Science/Topics/Drought&_r=1 (last viewed Nov. 13, 2007).
128
131
Richard W. Hemingway, Law of Oil and Gas, s 1.2, (West Publishing Co. 1991) 3 rd Edition. See Vogel
v. Cobb, 141 P.2d 276, 280 (1943):
While it may be conceded that water, in a technical sense, is a mineral, it does not follow that it
will pass under ordinary mineral deeds…Water…is of a quite different chemical composition, is
not ordinarily thought of as valuable [and] is necessary to life and the use and enjoyment of the
surface.
21
Despite its long history, the English Rule- based mainly as it was on scientific
ignorance- has mostly died out. As understanding of groundwater hydrology increases
along with demand for groundwater itself, the rule will continue to be marginalized.132
B. The Reasonable Use Rule
The Reasonable Use rule is an adaptation of the English Rule that limits a
landowner’s groundwater usage to beneficial purposes on the overlying land, yet does not
restrict the landowners right to use the water elsewhere- absent proof of harm to his
neighbor.133 Accordingly, “a court may curtail use of the groundwater if a user interferes
with the reasonable use of another landowner.”134 The Court in State v. Michels noted the
doctrine: “is not a very radical departure from the common-law rule. It still contains
quite a broad privilege to use ground water.”135
C. The Correlative Rights Rule
The Correlative Rights doctrine is another departure from the English Rule, this
time making all landowners over a common groundwater source co-equal and their rights
correlative, or dependant, on one another: “one cannot extract more than his share of the
water, even for use on his own land, where other’s rights are injured thereby.”136 A
fortiori, the use and rights of neighboring landholder’s similarly limit use of groundwater
132
Waters and Water Rights, § 21.01.
CJS WATERS § 203.
134
Benjamin R. Vance, Total Aquifer Management: A New Approach To Groundwater Protection,
30USFLR 803, FN 34 (Spring 1996) citing William Goldfarb, Water Law 43 (1988); 3 Waters and Water
Rights, s 20.04.
133
135
217 N.W.2d 339 (1974).
State of Wisconsin v. Michels Pipleline Construction, Inc., 217 N.W.2d 339 (1974), quoting CJS
WATERS § 204.
136
22
off-site.137 “A proper overlying use is paramount, and the right of an appropriator, being
limited to the amount of the surplus, must yield to that of the overlying owner in the
event of a shortage.”138 California is regarded as the leading Correlative Rights
groundwater state.139
D. The American Rule
The fourth general groundwater rule is the mixed Reasonable Use/Correlative
Rights, or American Rule.140 The American rule is a combination of the Reasonable Use
(when there is abundant water for all users), and Correlative Rights (when there are water
shortages) doctrines, modified by various statutes in various places.141 Nebraska, for
instance, added by statute “a preference for domestic use over all other uses and for
agricultural use over manufacturing and industrial uses.”142 As detailed below,
Minnesota has adopted a similar priority regime for consumptive appropriation of
water.143 The American Rule was the original rule adopted by the Restatement of the
Law of Torts, though the Restatement Second “significantly change” the rule of the first
Restatement.144
137
CJS WATERS § 204.
CJS WATERS § 204.
139
Katz v. Walkinshaw, 74 P. 766 (1903).
140
George A. Gould, Douglas L. Grant and Gregory S. Weber, Cases And Materials On Water Law 331,
335 (Thompson/West 2005) 7th ed.
138
141
George A. Gould, Douglas L. Grant and Gregory S. Weber, Cases And Materials On Water Law 333
(Thompson/West 2005) 7th ed.
142
George A. Gould, Douglas L. Grant and Gregory S. Weber, Cases And Materials On Water Law 333
(Thompson/West 2005) 7th ed.
143
M.S.A. § 103G.261(a)(1-6) Current through 2007 Regular Session. Minnesota statute defines
“consumption” as “water withdrawn from a supply that is lost for immediate further use in the area.” Id.
144
State v. Michels, 217 N.W. 2d 339, 350.
23
E. The Restatement Rule
The fifth and final rule is the current Restatement Rule.145 Where the American
Rule was a hybrid of the reasonable use and correlative rights doctrines, the Restatement
Rule is a hybrid of the English and Reasonable Use rules.146 R2d Torts § 858:
(1) A proprietor of land or his grantee who withdraws ground water from the land
and uses it for a beneficial purpose is not subject to liability for interference with
the use of water by another, unless
(a) the withdrawal of ground water unreasonably causes harm to a proprietor of
neighboring land through lowering the water table or reducing artesian pressure,
(b) the withdrawal of ground water exceeds the proprietor's reasonable share of
the annual supply or total store of ground water, or
c) the withdrawal of the ground water has a direct and substantial effect upon a
watercourse or lake and unreasonably causes harm to a person entitled to the use
of its water.
(2) The determination of liability under clauses (a), (b) and (c) of Subsection (1)
is governed by the principles stated in §§ 850 to 857.
The Restatement Rule purportedly “merges prior groundwater law into a standard
intended to more equitably meet growing demands on water resources.”147 The official
comments to the Restatement indicate otherwise. Comment b. General rule states:
This section also recognizes that the right to withdraw ground water is a property
right that may be granted and sold to others. The rule permits the sale of ground
water and the grant of the right to extract it to persons who need water but do not
want the land overlying it. Placing groundwater on the market in this fashion also
tends to promote its development and use by those who can make the most
valuable use of it.148
R2d Torts § 858 Comment b. is the only modern doctrinal authority to revive the private
property aspect of the English Rule and encourages the same misapprehensions. And
while groundwater was indeed ruled an article of commerce in Sporhase v. Nebraska,
145
REST 2d TORTS s 858.
Juliane R. Bourquin Matthews, A MODERN APPROACH TO GROUNDWATER ALLOCATION
DISPUTES: CLINE v. AMERICAN AGGREGATES CORPORATION, 7 J. Energy L. & Pol'y 361.
147
Juliane R. Bourquin Matthews.
148
REST 2d TORTS s 858, Comment b. General rule, (Current through August 2007).
146
24
that designation came with conditions of its own- namely the right of Congress to so
regulate groundwater in the future as an article of commerce.149
V. STATE GROUNDWATER RULES
A. Minnesota
Minnesota has the most highly developed and restrictive groundwater permitting
regime of the eight Great Lakes states. The leading case law is rooted in the state’s
police power and holds that “riparian [private use] rights are subordinate to the rights of
the public and are subject to state regulation.”150 Further, that “legislation which limits or
regulates the right to use underlying water is permissible.”151 Water use permits are
required of everyone in Minnesota.152 Persons, partnerships, associations, private and
public corporations, municipalities, and the state itself are all required to obtain a water
use permit before any water can be appropriated.153 Groundwater management is “vested
in a multiagency approach” that includes the Environmental Quality Board, the Pollution
Control Agency, the Dept. of Agriculture, Board of Water and Soil Resources, Dept. of
Natural Resources, Dept. of Health and the Environmental Quality Board.154
“Ground water overdraft is a national problem and Congress has the power to deal with it on that scale.”
458 US 941 at 954. Federal involvement in groundwater has been limited to contamination prevention and
removal under scattered provisions of federal environmental law (CWA, SDWA, RCRA, CERCLA and
FIFRA). See EPA Groundwater Report to Congress http://www.epa.gov/safewater/sourcewater/pubs/rptcongress_gw_2001.pdf (last viewed Nov. 24, 2007).
149
150
Crookston Cattle Company v. Minnesota Department of Natural Resources, 300 N.W.2d 769, 774
(1981).
151
Crookston Cattle Company v. Minnesota Department of Natural Resources, 300 N.W.2d 769, 774
(1981).
152
M.S.A. § 103G.271(1). Current through 2007 Regular Session.
153
M.S.A. § 103G.271(1)(b). Current through 2007 Regular Session.
M.S.A. § 103A.204(a)(1-6). Current through 2007 Regular Session.
154
25
The statutory scheme in Minnesota begins with the caveat “The Water Law of this
state is contained in many statutes that must be considered as a whole to systematically
administer water policy for the public welfare.”155 Minnesota statute lays out a
comprehensive appropriation scheme broken into six categories by priority: first,
domestic water supply, second, use of less than 10,000 gallons per day, third, agricultural
irrigation and processing of agricultural products, fourth, power production, fifth, other
consumptive uses in excess of 10,000 gallons per day, and sixth, nonessential uses.156
Anyone appropriating water must measure and keep record of the quantity of water
used.157 Any changes or increases in pumping capacity of any installation require
permission of the commissioner.158 The commissioner may examine any installation that
uses surface or ground water.159 Diversions of water from the state “must be
discouraged.”160 While Minnesota has not explicitly stated which groundwater regime it
fits within, based on its extensive permit system Minnesota seems to fit within the mixed
Reasonable Use/Correlative Rights (American Rule) category detailed above.
B. Wisconsin
Wisconsin was governed by the English rule of Huber v. Merkel, supra, until
1974 when the Wisconsin Supreme Court explicitly overruled Huber in State of
Wisconsin v. Michels Pipeline Construction, Inc.161 The Court adopted the Restatement
Second rule, which combines the English and Reasonable Use rules, with an eye toward
155
156
M.S.A. § 103A.211. Current through 2007 Regular Session.
M.S.A. § 103G.261(a)(1-6). Current through 2007 Regular Session.
157
M.S.A. § 103G.281. Current through 2007 Regular Session.
M.S.A. § 103G.275(1). Current through 2007 Regular Session.
159
M.S.A. § 103G.275(3). Current through 2007 Regular Session.
160
M.S.A. § 103G.261(f). Current through 2007 Regular Session.
161
217 N.W.2d 339, 350.
158
26
protecting small well owners from larger municipal users.162 Wisconsin statute regulates
high capacity wells, and establishes “groundwater protection areas” within 1200 feet of
“outstanding” and “exceptional” water resource areas and designated trout streams.163
High capacity wells are defined as those that pump more than 100,000 gallons per day.164
High capacity wells located in groundwater protection areas can be regulated as to
“location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the
high capacity well does not cause significant environmental impact.”165 Even within
designated groundwater protection areas, however, municipalities can be exempted from
these requirements if there are no reasonable alternative locations for well placement.166
C. Michigan
Michigan has followed the Reasonable Use rule since the 1917 case of Schenk v.
City of Ann Arbor.167 The Reasonable Use rule was more recently reaffirmed in United
States Aviex Co. v. Travelers Insurance Co.168 The ongoing dispute over groundwater in
Michigan Citizens for Water Conservation v. Nestle Waters Inc. may impact Michigan’s
Reasonable Use groundwater rule in the future.169 Michigan statute has cast reasonable
use of groundwater in terms of nuisance and abatement.170 When a well has been found
in violation of the Reasonable Use rule- constituting a nuisance- statute directs the Court
to “specify in some practicable manner the daily amount or volume of water that may be
162
217 N.W.2d 339, 350.
W.S.A. § 281.34. Current through 2007.
164
W.S.A. § 281.34(1)(b). Current through 2007.
165
W.S.A § 281.34(5)(b). Current through 2007.
166
W.S.A § 281.34(5)(b)(2). Current through 2007.
167
163 N.W. 109, 114 (1917).
168
336 N.W.2d 838, 844 (1983).
169
Michigan Supreme Court. Available at http://courts.michigan.gov/supremecourt/Clerk/0107/130802/130802-Index.htm (last viewed Oct. 10, 2007).
170
M.C.L.A. § 600.2941(1). Current through 2007 Legislative Session.
163
27
used or allowed to flow therefrom.”171 Further, the “judgment may be reopened at any
time after entry on the question of reasonable use on a proper showing of change of
circumstances or other equitable reason therefor.”172 Additionally, Michigan requires any
industrial, processing, irrigation, or farm user of more than 100,000 gallons per day of
Great Lakes Basin water in any 30-day period to register with the state.173 A statewide
groundwater inventory was mandated in 2003,174 and completed in 2005.175
D. Illinois
The leading case in Illinois is Bridgman v. Sanitary District of Decatur, which
affirmed the Water Use Act of 1983 and established the Reasonable Use rule for
groundwater withdrawals.176 Prior to 1983, Illinois had followed the Absolute
Ownership, or English Rule.177 New users of more than 100,000 gallons on any given
day are subject to review by the Illinois State Water Survey to determine the impact on
neighboring users.178 The Court in Bridgman noted at some length that the Illinois
Reasonable Use rule for groundwater is based on Evans v. Merriweather, a case from
1842 that established the Reasonable Use rule for surface water in Illinois.179
Merriweather contains an interesting discussion of natural vs. artificial wants that tracks
nicely with more modern discussions of water scarcity:
171
172
M.C.L.A. § 600.2941(3). Current through 2007 Legislative Session.
M.C.L.A. § 600.2941(3). Current through 2007 Legislative Session.
173
M.C.L.A. § 324.32705(1)(a-c).
M.C.L.A. § 324.32802.
175
Michigan Groundwater Mapping Project available at http://gwmap.rsgis.msu.edu (last viewed Nov. 11,
2007).
176
517 N.E.2d 309, 312. 525 ILCS 45/3(c).
177
517 N.E.2d 309, 312
178
525 ILCS 45/5.
179
517 N.E.2d 309, 312.
174
28
It is proper to consider the wants of man in regard to the element of water.
These wants are either natural or artificial. Natural are such as are
absolutely necessary to be supplied, in order to his existence. Artificial,
such only, as by supplying them, his comfort and prosperity are increased.
The supply of man’s artificial want is not essential to his existence; it is
not indispensable; he could live if water was not employed in irrigating
lands, or in propelling his machinery.180
In that vein, Illinois statute authorizes Soil and Water Conservation Districts to restrict
withdrawals of groundwater in emergencies.181 Further, an emergency complaint and
review process is in place for groundwater withdrawals in the Iroquois and Mackinaw
River Basins.182 Additionally, the Illinois Groundwater Protection Act of 1987 mandates
the statewide monitoring of wells, the development of a data collection program and an
evaluation of the impact of pesticides on groundwater.183
Interestingly, Illinois is alone among the Great Lakes states in one regard- the
Lake Michigan diversion at Chicago.184 Also known as the Illinois, or Chicago diversion,
the Lake Michigan diversion was engineered between 1892 and 1900 to reverse the flow
of the Chicago River and send 10,000 cubic feet of water per second from Lake Michigan
into Chicago, and eventually onwards to St. Louis and the Mississippi River.185 The
Lake Michigan diversion has been the subject of litigation ever since,186 and was very
nearly the deal breaker for Illinois in the Compact bargaining process. 187 As adopted by
the Council in 2005, the Compact explicitly exempts the Lake Michigan diversion from
the Compact terms, leaving the diversion to be governed by the United States Supreme
180
517 N.E.2d 309, 312.
525 ILCS 45/3(b).
182
525 ILCS 45/5.1.
183
415 ILCS 55/1 et seq.
184
Peter Annin, The Great Lakes Water Wars 86 (Island Press 2006).
185
Peter Annin, The Great Lakes Water Wars 86-87 (Island Press 2006).
186
Wisconsin v. Illinois, 449 U.S. 48 (1980). The original 1930 Decree has been modified several times.
187
Peter Annin, The Great Lakes Water Wars 215-216 (Island Press 2006).
181
29
Court.188 This third rail of Illinois water law is reflected in Illinois statute as well, with
the explicit provision that normal surface and groundwater rules do not apply to the area
covered by Supreme Court Decree.189
E. Indiana
Indiana has followed the English Rule since at least the 1860 case of The New
Albany and Salem Railroad Company v. Peterson.190 This was more recently affirmed in
Wiggins v. Brazil Coal and Clay Corp.191 Moreover, Wiggins explicitly rejected the
Restatement Rule that had been adopted below at the appellate level.192 Indiana statute
has moderated the English Rule to a certain extent, allowing that the public policy of the
state extends to “reasonable regulations for the most beneficial use and disposition of
ground water resources.”193 Further, the state can designate “restricted use areas” when
“the withdrawal of ground waters exceeds or threatens to exceed natural
replenishment.”194 The restricted use designation triggers a permit process for any new
user of more than 100,000 gallons per day.195 Existing users need only permit for
additional usage in excess of the 100,000 gallons per day threshold.196 The permit review
process will consider a variety of factors, including what the water will be used for, how
the groundwater withdrawal will affect neighboring users, and calculations of expected
188
Article 4, Section 4.14(1). Compact available at http://www.cglg.org/projects/water/docs/12-1305/Great_Lakes-St_Lawrence_River_Basin_Water_Resources_Compact.pdf (last viewed Oct. 10, 2007).
189
525 ILCS 45/3(c).
190
14 Ind. 112 (1860).
191
452 N.E.2d 958 (1983).
192
452 N.E.2d 958, 962 (1983).
193
ISA 14-25-3-3.
194
ISA 14-25-3-4(a).
195
ISA 14-25-3-7(1-2).
196
ISA 14-25-3-6.
30
future use and replenishment in the area.197 Most significantly, the permit may “impose
the conditions or stipulations that are necessary to conserve the ground water of the area
and prevent waste, exhaustion, or impairment of the ground water.”198 These conditions
may require a return flow of the withdrawn groundwater via “wells, pits, or spreading
grounds.”199
F. Ohio
The Supreme Court of Ohio adopted the Restatement Rule in 1984 in Cline v.
American Aggregates Corporation.200 Prior case law had held for the English Rule since
the 1861 case of Frazier v. Brown.201 Ohio statute speaks generally of “reasonableness of
use” before adopting the Restatement formulation.202 The Ohio Restatement Rule is
broken into nine determinative factors: (1) The purpose of the use; (2) The suitability of
the use to the watercourse, lake, or aquifer; (3) The economic value of the use; (4) The
social value of the use; (5) The extent and amount of the harm it causes; (6) The
practicality of avoiding the harm by adjusting the use; (7) The practicality of adjusting
the quantity of water used by each person; (8) The protection of existing values of water
uses, land, investments, and enterprises; and (9) The justice of requiring the user causing
harm to bear the loss.203 Any user of more than 100,000 gallons per day is required to
register with the state.204 Similar to Indiana’s “restricted use areas,” Ohio statute allows
197
ISA 14-25-3-8(1-6).
ISA 14-25-3-9(1).
199
ISA 14-25-3-9(2).
200
474 N.E.2d 324 (1984).
201
12 Ohio St. 294 (1861).
202
ORCA 1521.17(A-B).
203
ORCA 1521.17(B)(1-9).
204
ORCA 1521.16(A).
198
31
for the designation of “ground water stress areas,” whereby the Chief of the Division of
Water can establish the withdrawal capacity for the area.205
In 2005 the US 6th Circuit Court of Appeals certified a question from a
consolidated pair of Ohio cases to the Ohio Supreme Court:206
We are asked a question in the abstract: Whether Ohio recognizes a
property right in that amount of groundwater beneath a landowner’s
property that is necessary to the use and enjoyment of the owner’s home.
Our response is that Ohio recognizes that landowners have a property
interest in the groundwater underlying their land and that governmental
interference with that right can constitute an unconstitutional taking.207
The Ohio Supreme Court, leaning heavily on R2d Torts § 858 Comment b., held that this
“property interest in groundwater” is a “separate right in property” from the land itself.208
While the underlying cases were decided against the appellant landowner’s on grounds of
ripeness,209 we are left with this atavistic rule of law from the Ohio Supreme Court.
Whether this rule can survive a takings analysis will be discussed below, but it is
interesting to note that this decision runs counter to modern notions of groundwater and
property.
The Supreme Court of Nebraska addressed the same question in Bamford v.
Upper Republican Natural Resources District in which a groundwater control area (much
like Ohio’s own groundwater stress area statute) order to cease irrigation due to
insufficient groundwater levels was challenged as an uncompensated taking of
property.210 The Court held there could be no taking because “the only right held by an
205
ORCA 1521.16(B).
McNamara v. Rittman, Hensley v. Columbus, 107 Ohio St.3d 243, 838 N.E.2d 640 (2005).
207
838 N.E.2d 640, 643.
208
838 N.E.2d 640, 644.
209
Summary judgement affirmed, 473 F.3d 633 (2007). Certiorari Denied 2007 WL 1385120.
210
512 N.W.2d 642 (1994).
206
32
overlying landowner is in the use of the groundwater.”211 Similarly, the Supreme Court of
Florida ruled in Tequesta v. Jupiter Inlet Corp. that “the term ‘ownership’ as applied to
[ground] water never meant that the overlying owner had a property or proprietary
interest in the corpus of the water itself.”212
G. Pennsylvania
Pennsylvania suffers from a paucity of groundwater law. In their first (and last)
pronouncement on the issue, the Supreme Court of Pennsylvania in 1940 rejected the
English Rule and adopted the Reasonable Use rule in Rothrauff v. Sinking Spring Water
Co.213 In classic Reasonable Use language the Court held “a property owner may not
concentrate such waters and convey them off his land if the springs or wells of another
landowner are thereby damaged or impaired.”214 Pennsylvania statute has little to add
beyond the 1939 Water Rights Act that limits municipalities in their surface water
withdrawals,215 and a 2003 promise to develop a state water plan within five years that
will identify critical water resources.216 Additionally, groundwater is subject to
211
212
512 N.W.2d 642 at 652 (1994). Emphasis added.
371 So.2d 663 at 667 (1979):
This necessarily follows from the physical characteristic of percolating water. It is migratory in
nature and is a part of the land only so long as it is in it. There is a right of use as it passes, but
there is no ownership in the absolute sense. It belongs to the overlying owner in a limited sense,
that is, he has the unqualified right to capture and control it in a reasonable way with an immunity
from liability to his neighbors for doing so. When it is reduced to his possession and control, it
ceases to be percolating water and becomes his personal property. But if it flows or percolates
from his land, he loses all right and interest in it the instant it passes beyond the boundaries of his
property, and when it enters the land of his neighbor it belongs to him in the same limited way. Id.
213
14 A.2d 87, 90 (1940).
14 A.2d 87, 90 (1940).
215
32 P.S. § 633.
216
27 Pa. C.S.A. § 3115.
214
33
permitting regimes in the eastern two-thirds of the state under either the Delaware River
Basin Compact217 or the Susquehanna River Basin Compact.218
H. New York
In 1900 New York adopted the Reasonable Use rule in Forbell v. The City of New
York with typical reasonable use language: “whatever it is reasonable for the owner to do
with his subsurface water, regard being had to the definite rights of others, he may do.”219
New York statute mirrors this:
An alteration in the natural flow, quantity, quality or condition of a natural
watercourse or lake situated in this state and either on or below the surface
of the earth, effected by the use either on or off riparian land, withdrawal,
impoundment, or obstruction of the water…is reasonable and lawful as
against any person…unless such alteration is causing harm to him or it, or
would cause him or it immediate harm if and when begun.220
Waters of the state are defined to include groundwater.221 Groundwater is included
throughout the general water resource statutes.222 New York statute requires a permit
before any groundwater may be taken out of state,223 prohibits certain incompatible uses
over primary groundwater sources,224 and designates “special groundwater protection
areas” within the comprehensive management plan.225
VI. TAKINGS ANALYSIS
217
18 C.F.R. § 401.35.
18 C.F.R. § 806.4.
219
164 N.Y. 522, 526 (1900).
220
CLNY § 15-0701(1).
221
ECL § 15-0107(4).
222
ECL § 15-0101, et seq.
223
6 NY ADC 601.3(o).
224
ECL § 15-0514.
225
ECL § 55-0115.
218
34
Ownership of private property is not absolute. It is a fundamental premise
to private property ownership that all property is held subject to the
government’s powers of taxation, escheat, the police power, and eminent
domain. With the exceptions of the Constitution’s grant to Congress of
the power of conscription and the death penalty, the government’s power
of eminent domain-- the taking of private property for public use-- is the
most extraordinary power government exercises against its citizens.226
Recall the primary objection to the Compact held by Ohio State Senator Tim
Grendell- that the Compact’s assertion of public trust authority over the Great Lakes
Basin would constitute a fifth amendment taking of private property without just
compensation.227 Also recall the Ohio Supreme Court opinion in McNamara v. Rittman
that declared a private property interest in groundwater, separate even from the land
itself, which would sustain a takings claim based on interference.228 Would such claims
withstand the scrutiny of a US Supreme Court takings analysis? The short answer is no,
they would not.
The Fifth Amendment to the United States Constitution reads in pertinent part:
“nor shall private property be taken for public use, without just compensation.”229 For
analytical purposes, this short clause has been bifurcated historically into physical and
regulatory takings categories.230 There is no argument here that a physical taking, or
permanent physical occupation of real property by the government, would result from
passage of the Compact.231 At the very most, the imposition of the Public Trust over the
Great Lakes Basin would constitute a regulatory taking if, in the enigmatic words of
226
Charles B. McFarland, Protecting Private Property Rights After the Public Use Ship Has Sailed, ABA
Journal of Litigation, Vol. 34, No. 1 (Fall 2007).
227
Supra notes 36 and 37.
228
Supra notes 205-208.
229
US Constitution available at http://www.law.cornell.edu/constitution/index.html (last viewed Nov. 14,
2007).
230
Jesse Dukeminier and James E. Krier, Property 1116 (Aspen 2002) 5 th ed.
231
See Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419 (1982): “We conclude that a
permanent physical occupation authorized by government is a taking without regard to the public interests
that it may serve.”
35
Justice Holmes, the “regulation goes too far.”232 When considered against modern
takings jurisprudence announced in Penn. Central Transportation Company v. City of
New York233 and Lucas v. South Carolina Coastal Council,234 this regulatory takings
claim would fail as well.
In Penn Central, speaking to regulatory takings generally, the United States
Supreme Court stated:
[This] Court has upheld land-use regulations that destroyed or adversely
affected recognized property interests. Zoning laws are, of course, the
classic example which have been viewed as permissible governmental
action even when prohibiting the most beneficial use of the property.
Zoning laws generally do not affect existing uses of real property, but
“taking” challenges have also been held to be without merit in a wide
variety of situations when the challenged governmental actions prohibited
a beneficial use to which individual parcels had previously been devoted
and thus caused substantial individual harm.235
The Compact could easily be viewed as a quasi-zoning ordinance on a regional, interstate level, not least because it would only apply prospectively to new and increased
withdrawals of water.236
Nor does imposition of the Public Trust amount to an economic regulatory taking.
The Compact does not interfere with any “investment backed expectations” of existing
water user’s within the Basin.237 Besides the western one-third of Pennsylvania, the
Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922): “Government hardly could go on if to some
extent values incident to property could not be diminished without paying for every such change in the
general law.” Id. at 413.
233
438 US 104 (1978).
234
505 US 1003 (1992).
235
438 US 104, 125 (1978). Citations omitted.
236
Compact Article 4, Section 4.3(1).
232
438 US 104, 124-25 (1978). “[The] submission that appellants may establish a “taking” simply by
showing that they have been denied the ability to exploit a property interest that they heretofore had
believed was available for development is quite simply untenable.” Id. at 130.
237
36
entire Great Lakes Basin is already subject to some groundwater-permitting regime.238
The total economic loss considered in Lucas is not within the contemplated ambit of the
Compact:
As we have said on numerous occasions, the Fifth Amendment is violated
when land-use regulation “does not substantially advance legitimate state
interests or denies an owner economically viable use of his land.”
[Restated] We think, in short, that there are good reasons for our
frequently expressed belief that when the owner of real property has been
called upon to sacrifice all economically beneficial uses in the name of the
common good, that is, to leave his property economically idle, he has
suffered a taking.239
Further, whether or not groundwater is considered a part of the land, as in
Pixley,240 or a separate property interest appurtenant to the land, as in McNamara,241 the
Court in Penn Central states this is immaterial:
“Taking” jurisprudence does not divide a single parcel into discrete
segments and attempt to determine whether rights in a particular segment
have been entirely abrogated. In deciding whether a particular
governmental action has effected a taking, this Court focuses rather both
on the character of the action and on the nature and extent of the
interference with rights in the parcel as a whole [.]242
Neither is there any argument from Senator Grendell that a public interest is not at
stake here. The broad power of the State to regulate land in the public interest is well
illustrated in Hawaii Housing Authority v. Midkiff.243 Affirming Hawaii’s authority to
238
The eastern two-thirds of Pennsylvania fall under either the Delaware River Basin Compact or the
Susquehanna River Basin Compact. See Sean A. O’Neil, Municipal Groundwater Supply Regulation -Limitations of the Existing Management Frame Work, available at
http://library.findlaw.com/1999/Jun/1/129407.html (last viewed Nov. 20, 2007).
239
505 US 1003, 1016, 1019 (1992).
240
35 N.Y. 520, 526 (1866).
241
838 N.E.2d 640, 644.
438 US 104, 130-31. Emphasis added. Even the Ohio Supreme Court in McNamara admits as much,
though within the same tortured passage wherein they declare a separate property interest in groundwater.
See 838 N.E.2d 640, at 644-45: “The title to property includes the right to use the groundwater beneath
that property…and [Cline] confirms that groundwater rights are a separate right in property.”
242
243
467 US 229 (1984).
37
condemn private property in service of a new land use scheme, the US Supreme Court
cited Berman v. Parker244 that upheld the District of Columbia Redevelopment Act of
1945:
We deal, in other words, with what traditionally has been known as the
police power. An attempt to define its reach or trace its outer limits is
fruitless, for each case must turn on its own facts. The definition is
essentially the product of legislative determinations addressed to the
purposes of government, purposes neither abstractly nor historically
capable of complete definition. Subject to specific constitutional
limitations, when the legislature has spoken, the public interest has been
declared in terms well-nigh conclusive. In such cases the legislature, not
the judiciary, is the main guardian of the public needs to be served by
social legislation, whether it be Congress legislating concerning the
District of Columbia…or the States legislating concerning local
affairs…This principle admits of no exception merely because the power
of eminent domain is involved. The role of the judiciary in determining
whether that power is being exercised for a public purpose is an extremely
narrow one.245
Whether the Compact is grounded in the Public Trust doctrine, or within the
doctrine of state police power, the result is effectively much the same: private individuals
will have to give up a small bit of their autonomy for the common good.246 This is the
price we pay for enjoying the benefits of civil society. Based on the foregoing, it seems
all but certain that Senator Grendell’s assertion of a fifth amendment taking would fail on
review by the United States Supreme Court.
244
348 US 26.
348 US 26, 32. Citations omitted. Emphasis added.
246
Nailing down the distinction between the two has proven particularly vexing for this author. Further,
why an assertion of the Public Trust Doctrine has been made when plain old state police power would seem
to do just as well (and with less acrimony) is still an open subject. Two pieces of evidence have suggested
themselves to me as to why the Public Trust Doctrine should be asserted rather than state police power.
First is the decision in United Plainsmen v. North Dakota that seems to indicate the Public Trust is both
broader and deeper than state statute. Almost as if to say where codification fails, there are nevertheless
certain values that must be served. The second indication of this was from the Institutes of Justinian that
opened “By the laws of nature these things are common to all mankind.” This brought to mind halfremembered undergraduate Philosophy discussions on natural rights, secular or otherwise, and social
contract theory as an evolving, inter-generational concept. It may be the Public Trust Doctrine should be
numbered among those rights to life and liberty that are conditions precedent to legitimate democratic
governance.
245
38
VII. CONCLUSION
The Compact is a framework for change. Explicit throughout our discussion is the
recognition that groundwater is a scarce resource that needs to be managed properly.
Implicit is the somewhat more subtle recognition that hard times are coming- and when
times are bad, the rules change. At its most fundamental, the Compact is about survival in
an age of change. To assert public trust authority over all waters of the basin is to assert
that the collective good of all the people in the basin is paramount- over people and
communities outside of the basin, and indeed over individual users within the basin.
What’s important about the Compact, though, is not what it accomplishes today. The
important thing about the Compact is that it establishes a framework for proactive change
on an unprecedented Basin wide level. And change is coming, whether we choose to be
ready or not. As the Vice President of the World Bank put it in 1995: “If the wars of this
century were fought over oil, the wars of the next century will be fought over water.”247
The Compact is a means to forestall at least one such war. Senator Grendell should take
note and end his demagogic obstruction of the Compact in Ohio.
247
Vandana Shiva, Water Wars: Privatization, Pollution, and Profit ix (South End Press 2002). Or as Mark
Twain supposedly put it a century earlier: “Whiskey is for drinking, water is for fighting over.” Discussion
on the origins of the quote available at http://listserv.linguistlist.org/cgi-bin/wa?A2=ind0610b&L=adsl&P=13089 (last viewed Nov. 24, 2007).
39