Public Ownership Violates Property Rights

(The following is an edited version of an Op-Ed that appeared in the Detroit Free Press on April 22, 2010.)

It's not surprising that Michiganders uniquely identify with the beauty and value of water. Our state is home to 11,000 inland lakes and thousands of miles of rivers and streams. It is surrounded by the Great Lakes, which comprise nearly 20% of the world's fresh water.

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Most residents also recognize that private property rights are a bedrock principle of a free people. They're guaranteed by both the U.S. and Michigan constitutions. Unfortunately, House Bill 5319, introduced by Rep. Dan Scripps, D-Leland, is a direct threat to those rights.

This bill would place groundwater in the public trust and would be the single biggest taking of private property in Michigan's history. The result: government ownership of groundwater, overturning a century of Michigan water law.

Michigan is a riparian water-use state, as are most states east of the Mississippi River. Under Michigan law, if you own the land, you have a right to use the groundwater as long as you not unduly interfere with your neighbor's property. In contrast, the arid western states generally appropriate water; usually based on historic claims that often lead to confrontation and legal wrangling. This led Mark Twain, who spent time in Nevada, to reportedly quip, "Whisky is for drinking and water is for fighting."

Supporters of placing groundwater in the public trust claim that, since water flows in underground rivers (aquifers), groundwater belongs to everyone and only government ownership can protect it. These claims don't hold water. Michigan is blessed with abundant water -- many homeowners in the state have to install sump pumps just to keep water out of their basements.

Michigan already has laws to protect against the overuse of water. Public Act 148, signed into law by Gov. Jennifer Granholm in 2003, regulates the use of groundwater in sensitive areas, such as trout streams and well-head protection areas. The Aquifer Protection and Dispute Resolution Act was signed into law that same year, requiring the state to conduct a technical investigation when landowners file a complaint alleging that their groundwater has been adversely affected. If the state determines that there is merit to the complaint, the law authorizes the state to remedy the situation.

Placing groundwater in government ownership is not needed to protect our natural resources. Worse, it is bad public policy. Michigan's water is an economic asset and is the envy of most states. Wise use of water should be encouraged to serve as a catalyst for providing much-needed jobs in the state, rather than turning that asset into a liability by subjecting job providers to a new, costly and time-consuming permit process.

Water rights are an important component of property rights. Michigan voters recognized the importance of protecting against physical taking of property by passing Proposition 4 in 2006, making it more difficult for government to take property by eminent domain. Protecting private water rights from regulatory taking is no less important.


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.