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 Trust
Illinois 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 proof
Obrecht 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. McCarter
209 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