A ballot initiative amending the Ohio Constitution and protecting the rights of landowners to use groundwater was approved by an impressive 72 percent of the voters in the November 2008 election.
politicians talk about placing natural resources in public trust, landowners
should be worried. The right to own and use private property is a bedrock
principle of a free people. These rights are threatened by House Bill 5319,
which would place groundwater in public trust and require landowners to secure
a permit from the state of Michigan in order to use that water. The bill would
essentially overturn more than a century of Michigan water law.
Property rights are often compared to a bundle of
sticks. Philosopher John Locke was an early proponent of this idea, which holds
that the sticks that make up the bundle are a compilation of the various rights
that come with owning private property, including the rights to live on or
bequeath it. Water rights are a significant "stick" in that bundle. With the
introduction of House Bill 5319, Michigan property owners are threatened by
government action that would steal a stick from that bundle and give it to the
states east of the Mississippi River, Michigan is a riparian water-use state.
In Michigan, if you own the land, you own the water and have a legal right to
use that water as long as you do not interfere with the reasonable use of water
by your neighbors. This has been true since the state was first settled.
law has worked well in Michigan for the simple reason that Michigan has
abundant water. In fact, Michigan groundwater tables are so high that many
homeowners have to install sump pumps just to keep water out of their
public trust legislation treats groundwater as if we lived in an arid Western
state, where water tables can be 1,000 feet or more beneath the surface. In
many of these states, water is appropriated by the government, leading to
endless conflicts and lawsuits. Mark Twain, who spent time in Nevada, famously
quipped about the situation: "Whiskey is for drinking and water is for
Legislature dealt with recent groundwater concerns with the passage of Public
Act 33 of 2006. That law requires a landowner to obtain a groundwater permit in
certain circumstances, such as proximity to a trout stream. Public Act 33 was a
compromise between landowners and business groups that wanted to preserve
private property water rights, and environmental groups that believed that all
water should belong to the government. That law has already made it more
difficult to use water in the state, removing a competitive advantage Michigan
once enjoyed and turning it into a minor liability.
government control of water in the state would not only be a taking of private
property, but would be a serious threat to future economic growth. Access to
abundant water in the state is a key advantage Michigan has in attracting
much-needed jobs in energy, agriculture and manufacturing, including the
so-called green jobs Gov. Jennifer Granholm seeks. The state cannot afford to
throw that advantage away, especially since Michigan is not threatened by a
shortage of water.
threatening water rights, Michigan needs to follow the example of Ohio. A
ballot initiative amending the Ohio Constitution and protecting the rights of
landowners to use groundwater was approved by an impressive 72 percent of the
voters in the November 2008 election. The constitutional amendment in Ohio
merely codified existing riparian water law, which was similar to the kind used
successfully in Michigan for the past century.
officials seem more interested in taking away existing rights of property
owners rather than protecting them. It may be time to take the critical issue
of property rights directly to the voters, bypassing the political class. As
the Ohio example shows, residents understand the importance of property rights
better than do many politicians.
Russ Harding is
senior environmental analyst and director of the Property Rights Network at the
Mackinac Center for Public Policy, a research and educational institute headquartered
in Midland, Mich. Permission to
reprint in whole or in part is hereby granted, provided that the author and the
Center are properly cited.