Stopping diversion of Great Lakes Basin waters

By Stacy Gittleman

Standing on the shores of Lake Michigan, where water flows into the horizon and the shores of Canada are far out of sight, one can get the impression that the waters of the Great Lakes can never be tapped dry.

Indeed, Lake Michigan alone holds 1.3 quadrillion gallons of water, and the Great Lakes Basin, an international region that also includes the St. Lawrence River, holds the largest source of fresh water in the world.

But when we live in a time when in the Southwest, the Colorado River is racing to the ever-dire state of "Deadpool," meaning that there is not enough water to flow as a contiguous river to help bring hydropower or to quench the thirst for some 40 million people who depend on it as a prime water resource, could the Great Lakes reach a similar fate from overuse in a warming planet?

As plentiful as the waters of the Great Lakes appear, we know it is not an infinite source. And although going back as far as the 1950s, there have been binding and non-binding pacts between Great Lakes states and the Canadian provinces that encircle the Great Lakes to protect and steward the waters in a public trust for generations to come, environmentalists fear that this public trust is getting slowly chipped away.

This past April, Chicago made a $1 billion deal to divert treated drinking water from Lake Michigan through a pipeline to the city of Joliet, Illinois. Beginning in 2030, this city and the surrounding region, located 35 miles southwest of Chicago and just outside of the Great Lakes Basin parameters, can receive up to 2.1 billion gallons of water per day for the next century. Critics of the deal, which was signed by former Chicago Mayor Lori Lightfoot, said this is a breach of the historic 2008 Great Lakes Compact.

Proposals to divert water from the Great Lakes go back to the 1980s, when a coal company tried to remove the waters for coal mining operations in Wyoming.

Will the Chicago-Joliet deal open the door to divert more water away from the Great Lakes Basin? Do we need to step up the urgency of protecting our freshwater source with more stringent laws before it is too late?

According to the Institute of Water Research (IWR) at Michigan State University, in 2021, 2,965,066,005,332 gallons – that's nearly three trillion gallons – were withdrawn from all sources of Great Lakes Basin water, including groundwater, inland surface water, and the Great Lakes.

Groundwater withdrawals accounted for 202,242,002,932 gallons, which were a little less than seven percent of the total withdrawals. According to state of Michigan data, groundwater withdrawals in 2021 from bottling corporations such as Nestlé Waters of North America, which in 2021 sold its bottling rights to the newly named company Blue Triton Waters, totaled 457,878,820 gallons. Though that number is just .2 percent of total annual consumptive use for the state, the bottling industry continues to stir the ire of environmentalists because they believe bottling and profiting from water drawn from public sources forges a dangerous precedent.

“Michigan has an abundance of water resources but in some areas, due to aquifer characteristics and increased demand for water, the local communities are experiencing some challenges in managing the long-term sustainable use of their water resources,” said Jeremiah Asher, IWR assistant director. “There is always a risk of depletion if more water is removed faster than the system can replenish it through groundwater recharge. This is particularly true if recharge zones are farther away and take more time to recharge the aquifer.”

Environmentalists, environmental lawyers and policymakers agree that because Michigan is surrounded by so much water, this vital resource continues to be taken for granted – just as the air we breathe. And while compacts made in recent decades protect surface waters, as detailed below, the entire region lacks the mapping data to fully understand the quantity and characteristics of our groundwater and aquifer supplies and how they connect to our lakes, rivers, and streams. Urgency, they maintain, is what is needed to tighten laws and restrict the potential to ship Great Lakes waters elsewhere.

Stewardship policies and governing bodies of the Great Lakes have their roots in the public trust doctrine. Dating back to Roman civil law, the public trust doctrine recognizes the public right to many natural resources, including the air, running water, the sea and its shore.

The earliest governing body to protect Great Lakes waters and monitor water usage was the Great Lakes Commission, established in 1955 by the Great Lakes Basin Compact. It was signed by Illinois, Indiana, Michigan, Minnesota and Wisconsin, and granted consent by the U.S. Congress in 1968.

Also inspired by the public trust doctrine, the 1985 Great Lakes Charter was created as a non-binding agreement signed by the Great Lakes governors to strengthen water management activities in the basin. The 1985 agreement also called for the establishment of the Great Lakes Water Commission and the maintenance of a regional system for the collection of data on major water uses, known as the Water Use Database. Activated in 1988, it tallies Great Lakes water withdrawals, diversions, and consumptive uses and catalogs withdrawals by water-use category, sub-basin, and jurisdiction.

Every five years, it releases a report that documents levels of water flowing into and out of the water basin that is both natural and man-made and compares it to data points set as far back as 1948.

In its last report, which examined the cumulative impact of water consumption and use from 2011-2015, the Great Lakes Water Commission reported water intake from water runoff, precipitation, and water moving between the Great Lakes system at 451,212 cubic feet per second (cfs) reassuringly dwarfs outtake numbers at 174,970 cfs from evaporation, consumptive uses and water diverted to the St. Lawrence River. However, this cumulative report concluded that due to the increasing rate of climate change and the lack of enough data point collection throughout the basin, there is much uncertainty as to how quickly the entire system is losing water.

The report states: “All components of the Basin water budget have significant uncertainty. Runoff, evaporation from the Lake surfaces, and precipitation on the Lake surfaces are all calculated using models that compute watershed values from point data. No data exists, however, for many areas within the Basin and each Watershed. For instance, 34 percent of the Lake Huron watershed has no streamflow gauges, and runoff from this area is estimated from nearby gauges. Additionally, precipitation on the surfaces of the Lakes is calculated almost entirely from precipitation gauges that are near, but not on, the Lakes.”

The Great Lakes Water Commission also releases annual reports on its water use database and defines the following categories of water use:

Public Water Supply Water: Water distributed to the public through a system of treatment, storage and distribution facilities serving a group of largely residential customers that may also serve industrial, commercial and other institutional operators. Water withdrawn directly from the basin and not through such a system shall not be used for public water supply purposes.

Self-Supply Commercial and Institutional Commercial: Water users include water used by motels, hotels, restaurants, office buildings, mobile homes, hospitals, schools, air conditioning and other similar uses not covered under a public water supply.

Self-Supply Irrigation: Includes water that helps in the growing of crops and/or recreational lands like golf courses and parks.

Self-Supply Livestock: Water consumed for domesticated farm animals and in fish hatcheries.

Self-Supply Industrial: Includes water used in the manufacture of metals, chemicals, paper, food and beverage industries. This category also includes water used in mining and quarrying.

Self-Supply Thermoelectric Power Production: The largest portion of water use recorded falls into this category. This is water that is diverted and used to create electric energy, or water used in a cooling capacity such as boiler make-up water and contact cooling water at electrical power generating facilities that use once-through cooling systems.

According to the Great Lakes Commission’s most recent 2021 water usage database report, which includes all the water in the Great Lakes Water Basin, the total reported withdrawal amount for the entire waterway system totaled 35.7 billion gallons per day.

According to 2021 data, 71 percent was associated with generating electrical power – to generate steam or in cooling systems for thermoelectric power production and in off-stream hydroelectric power production; 14 percent of water use was for public water supply by cities and villages, and this included commercial, institutional and industrial users that are connected to a municipality’s public system; 10 percent of water use was for industrial facilities that have their own water supply system from water purchased from the public water system; three percent of water use was for other self-supply purposes which include withdrawals to maintain riverway water levels for navigation, creation/enhancement of fish and wildlife habitat, and water quality purposes; less than two percent of water use was for agriculture, including irrigation, livestock, and fish hatcheries. While this is small overall, these withdrawals are often groundwater withdrawals and may have high consumptive use, which can be significant at a local watershed scale. Less than one percent of water use was associated with dedicated systems at commercial and institutional facilities.

The state of Michigan, which draws waters from four of the Great Lakes and has more freshwater coastline than any other state, drew 8,164,000 million gallons per day (mgd), which was a one percent decrease from the 2020 total water withdrawal amount of 8,248,000 million gallons per day.

The largest water use was self-supply thermoelectric power production at 6.191 mgd, making up over 75 percent of Michigan’s total withdrawal. About 47 percent of the total withdrawal came from the Lake Erie watershed, mainly used for thermoelectric power production. Another 46 percent of Michigan’s total withdrawal amount came from the Lake Michigan watershed at 3.767 mgd, followed by the Lake Huron watershed at 544 mgd and the Lake Superior watershed at 41 mgd.

Signed into law in 2008 by President George W. Bush, the Great Lakes–St. Lawrence River Basin Water Resources Compact details how the Great Lakes states – Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin – as well as the provinces of Quebec and Ontario, manage the water of the Great Lakes Basin and protect the Great Lakes from diversions outside of the Great Lakes Basin. It requires each member state and province to manage their internal water resources.

Michigan has continually amended its own water withdrawal laws as it relates to the compact under the Michigan State Natural Resources Protection (NREP) Act of 1994.

In 2006, Michigan water withdrawal legislation was written under the assumption that wells deeper than 150 feet or farther than one-quarter of a mile from streams or rivers did not cause an adverse impact on the aquatic ecosystem.

When it was determined that withdrawing water from wells at this depth and distance from surface waters did have an impact, the state legislature in 2008 addressed these concerns and codified broader groundwater protections into state law. This marked the creation of Michigan’s Water Withdrawal Assessment Program, which was designed to prevent severe damage to lakes and streams as a result of siphoning off large amounts of water from surface and groundwater sources.

According to the Michigan Department of Energy, Great Lakes and Energy (EGLE), the Water Withdrawal Assessment Program is intended for use prior to installing a new or increased large quantity withdrawal for the purpose of determining the potential impact to nearby water resources. Use of the Water Withdrawal Assessment Tool is required prior to installation of any new or increased large quantity withdrawal.

In its most recent Water Withdrawal Report from 2021, which accounts for water withdrawal permits from July 9, 2020, to July 8, 2021, EGLE reported that 661 applicants accessed the water withdrawal tool for either new or larger increase quantity withdrawals during this time period. These requests are in accordance with Part 327 of NREP Act.

The section states that a new or increased large quantity withdrawal over 100,000 gallons per day (gpd) up to two million gpd must be authorized by the state with an annual $200 permit. Very large withdrawals of two million gpd, if permitted, are subject to a permit application fee of $2,000.

“For Michigan, this has served as the primary piece of legislation which regulates large water withdrawals and was built on earlier laws requiring greater disclosure of water use,” explained Hugh McDiarmid, EGLE spokesperson. “The legislation was connected to the adoption of the Great Lakes-St. Lawrence River Basin Water Resources Compact which strictly restricted diversion of Great Lakes water and gave the Great Lakes states the ability to veto diversions to straddling counties. In exchange, all the Great Lakes states were required to regulate large water withdrawals within their states.”

Because of the copious water that exists in our region, for now, environmental law experts and policy watchers admit that if an entity applies for a permit to withdraw water, they are going to get it.

Within all these compacts and trusts at the federal and international level, however, is a fatal flaw known as the water bottling loophole. Even within the compact's parameters, it only protects the surface waters of rivers, lakes, and streams but leaves water stored in aquifers and groundwater sources up for grabs. Environmentalists and environmental law experts contend that the law has not caught up with science which proves the hydrologic connectivity between ground and surface waters.

And although the quantity of water detracted may be small, environmentalists and environmental lawyers argue that bottling water from the Great Lakes and shipping it elsewhere by the liter or gallon is the only consumptive use of the water that does not return it back to the water cycle.

“Access and stewardship of the waters in the Great Lakes as part of the public trust is an important yet often overlooked piece of our bundle of rights in a democratic society,” said Sean McBrearty, legislative and policy director of Michigan Clean Water Action. “The water bottling loophole made its way into the Great Lakes Compact right before the Michigan state legislature passed the enabling legislation for the compact in 2008. This loophole allows companies like Nestlé (Blue Triton) to export and sell our water in containers that are 5.7 gallons or less. It’s this flaw in the compact that opens the door for corporations to commodify our water resources. Clean Water Action is worried. As we look to the future of a drier, hotter planet, the impacts this type of water extraction will mean versus traditional water extractions (such as municipal use and agriculture, for example.)”

Liz Kirkwood, executive director for Traverse City-based environmental watchdog organization For the Love of Water (FLOW) said when consumptive water use comes to mind, she points to the 2021 book Great Lakes for Sale, written by FLOW Senior Policy Director Dave Dempsey. The book chronicles the history of this country continually looking to the Great Lakes and its abundant fresh water supply to help out the parched states of the Southwest and other drier regions and local efforts trying to stave off this demand.

"The emergence of the Great Lakes Compact was an extraordinary victory for this region because it took place at a time when there were initial threats to our freshwater supply, but those threats were not at the level that we are seeing now," Kirkwood noted. "The Great Lakes Compact bans water diversions outside the Great Lakes Basin. We know that Arizona cannot come here, build a pipeline and pull water out of Lake Michigan for use in Arizona. But we know there are glaring exceptions that are a glaring eyesore.”

Kirkwood said that not all water diversion applications can be equalized as apple-to-apple comparisons. For example, though a bulk of Great Lakes water usage goes towards generating electric power, supplying municipalities with public drinking water, or watering crops or livestock, these waters eventually return to the Great Lakes water cycle.

That’s not the case for bottling water and selling it. That water, she says, is removed from the Great Lakes ecosystem, one bottle at a time, forever. The most notorious example of this bottling is the long saga of Nestle Waters of North America, renamed in 2021 as Blue Triton. Since the company began its operations in 2005 with an initial state application fee of $2,000, it has extracted and sold over four billion gallons of water from public and groundwater sources for profit – all to the tune of just $200 per year.

The water is extracted from the White Springs Pumping station, which sits at the headwaters of the Chippewa and Twin creeks in Osceola County, and then trucked to the Ice Mountain production facility in Mecosta County. The company pulls water from other wells in the area.

In other parts of the country, Blue Triton has a water pipeline running through the National San Bernardino Forest in parched California. Environmentalists there have been pressuring government officials to strictly curtail, and even stop, bottling when in 2015, it was discovered that the U.S. Forest Service had allowed the company to work off a permit that had expired in 1988.

Back in Michigan, environmentalists have long been fighting the water bottling operations, which ramped up when it was discovered in 2017 that the state was about to permit Nestle to nearly double its per-minute pumping output. The case which went back and forth in court in numerous wins, and appeals, by environmentalists.

In September 2021, Blue Triton relinquished a newly attained and contentious permit that would have allowed it to double its water consumption from 250 to 400 gallons per minute.

"The bottled water industry likes to say that compared to the thermal power plants and agriculture, they use a fraction of the amount of water," Kirkwood explained. "But what is very significant is that the very public waters that these private corporations are withdrawing, bottling, and selling back to the public are waters that are forever removed from the water cycle. And over time, this can have direct impacts in a watershed, particularly if they are pulled in headwater areas."

Over the time period since bottling water began, there have been conflicting anecdotes on the impact operations have had on the amount of water flowing. While the Natural Resources Defense Council in 2018 reported that the waters in the Chippewa and Twin Creeks were not plentiful enough to support trout populations, farmers in the area say they have not noticed a difference in the quantity of water they use to irrigate their crops.

Kirkwood said that what is needed is more education and more data to study the conditions of our groundwater and aquifers. She added that for the first time, the state legislature has approved recommendations from Michigan’s Water Use Advisory Council to allocate up to $10 million to improve data collection and groundwater and aquifer mapping. This includes recommendations to fund more comprehensive monitoring of wells and hydrologic transfers between ground and surface waters as well as making improvements to the state’s Water Withdrawal Assessment Tool.

"This allocation of funds for better mapping and data of our hydrologic systems is the first time this has happened in state government, where in the past it's been an afterthought," Kirkwood proclaimed. "The lack of groundwater data in the Great Lakes Basin is an impediment to conducting long-term sustainable use of this most precious resource. We have a patchwork of regulatory systems and incomplete data. That does not allow regulators to work effectively with the private and public entities to ensure safe, responsible, and sustainable uses of this resource."

McBrearty of Clean Water Action said to strengthen stewardship of our public waters, Lansing needs to revisit a set of bills introduced to the House in 2022. House Bills 2022 5953-5955 call for amending NREPA to close the water bottling loophole. This includes specifically naming groundwater as a public resource in the statute and charging appropriate state authorities with specific oversight of public trust water resources. The drafted house bills would create a more restrictive licensing system for water bottlers than the current water withdrawal assessment tool and require that royalties paid by water bottlers go into a segregated fund that must be spent only on water infrastructure, contamination and affordability programs.

A native of California’s Fresno Valley, where water wars have become more dire due to ongoing drought, McBrearty said that as he scans editorials in newspapers from back home, he sees increasing calls to bring waters from the Great Lakes to the parched West. Things are getting so bad there, he said, that farmers have pumped aquifers to the point where the land above is beginning to sink up to a foot per year.

“The West is truly the 'Wild West' of water laws,” said McBrearty. “And as the west continues to run out of water, I think it becomes more and more likely that they will try to export it from the Great Lakes Basin. The Great Lakes Compact has a fatal flaw that allows for commodification and privatization. And if a good lawyer were to challenge that in court, that our surface water is ours but the groundwater is not our groundwater and is not a protected public source, this can be left up to interpretation for a judge to one day decide.”

Traverse City-based attorney Ross Hammersley, whose firm represented Michigan Citizens for Water Conservation in a lawsuit to fight Nestle’s contested permit application to increase it's pumping output, said it is now common knowledge that bodies of water, whether they be surface water or groundwater, are hydrologically connected, but the laws do not reflect this.

“The law as it stands right now differentiates between surface and groundwater,” explained Hammersley. “And with some water use cases, the law does not regard water in an underground source the same way as surface water. A potential way to improve Michigan’s water usage laws is that water is water no matter where it lies. We need to adopt a set of regulations that acknowledges the connectivity of water and that acknowledges that if an aquifer does not have the ability to withstand a high level of pumping, it will adversely affect other people's ponds, streams, and wetlands.”

Tim Ladd, Osceola County administrator and controller, said the case with Nestlé raised several concerns not only within Michigan but within the entire country about how water can be taken out of a public supply and sold for a profit.

“Our township received hundreds of thousands of dollars in support for our environmental conservation efforts to pay for our attorney fees for the zoning issue,” said Ladd. “Since the court of appeals made their decision, things have been quiet with the new company, Blue Triton. And the company has come in and made some improvements in the town.”

He continued: “Within the township, Nestlé implemented a well assurance program which guarantees that if any resident has a problem with their well, and it can be established that water quantities in their well have directly been adversely affected by Nestlé’s operations in the aquifer, then Nestlé will drill the property owner a new well. That was accepted by the township and Nestlé has that in place."

Ladd also said that Nestlé maintains a hydraulic monitoring system within the Chippewa and Twin Creeks which measures temperature and water levels in these waterways. Even so, the taking and profiting off public waters does not sit right with him.

“That’s all the good stuff,” Ladd said. “But as the township supervisor, I have argued this with our state legislators as well as our state senators. I disagree that whether you are a private or a government entity, nobody should be able to take a natural resource out of the ground that belongs to the people for a $200-a-year permit and then make billions of dollars on it. To me, that's just not good stewardship of our natural resources. At some point in time, we could face the situations that we face out West, such as what's happening to the Colorado River."

While Nick Schroeck, who teaches environmental law at the University of Detroit Mercy, sees the Great Lakes Compact and the state’s Water Withdrawal Assessment permitting program as “good steps” to protect waters within the public trust, there is much room for improvement.

“Agriculture, energy, and industry, they all use millions of gallons per day, and all the permitting does is track water usage,” Schroeck said. "It is not intended to force water conservation, to protect our long-term interests. It's not a super rigorous permitting process, and when a business or other entity applies for a permit, unless that permit is wanted in a part of the state that is super stressed for water, in all likelihood they will get it.”

Schroeck said an impediment to fostering a sense of urgency to draft proactive legislation is the abundance of the Great Lakes themselves.

“Michigan is surrounded by 20 percent of the world’s fresh water and for now we do have an abundant supply of groundwater," Schroeck admitted. “And I think because of that, our attitude has leaned towards how much of the water we can use without much focus on conservation. But what we are seeing with these ground and surface water withdrawals are impacts on wetlands and amounts of water that flow in our streams and rivers. Couple that with a warming climate and increasing water evaporation rates, and I think our mapping and data sets are insufficient to keep up with how rapidly all this is changing.”

On top of bottling companies siphoning thousands of gallons of water daily, the Whitmer administration is seeking for the state to be a national hub of Electric Vehicle (EV) battery and battery component manufacturing as it strives to reach an economy-wide goal of carbon neutrality by 2050. But the manufacturing of EV batteries requires a great deal of water. And some of these plants have proposals to build in areas now zoned for agricultural uses.

According to the 2021 Water Use Report from the Great Lakes Regional Water Database, 38 percent of Michigan’s consumptive water use goes to agriculture, one percent goes to livestock irrigation, and 10 percent is used by industry.

It remains in question how much water such industries will need until they apply for EGLE permits, but this has raised some concerns within the state’s agriculture industry.

“I have heard from farmers who have been double checking on kind of what regulations these plants will need to be in compliance,” said Laura Campbell, agricultural ecology department manager for the Michigan Farm Bureau. Campbell also sits on the state’s Water Use Advisory Council, an advising body established in 2018 under Part 328, Aquifer Protection, of NREPA. The council is charged to report biennially to the Michigan state Legislature, EGLE, the Michigan Department of Natural Resources (DNR), and the Michigan Department of Agriculture and Rural Development (MDARD).

Campbell said the state’s Withdrawal Assessment program is a positive development in protecting water sources.

"One of the benefits and positives that we have in Michigan is a very robust, scientifically based water regulation system,” Campbell said. “It does not matter for what purpose you are withdrawing water, but there is a registration process depending on the amounts of water you pull on a daily basis. It is a great equalizing force because we are not trying to pick who gets to use the water and who doesn't. We're trying to say, anyone who wants to use it must comply with the responsible management of it, and you have to demonstrate that your use isn't likely to cause what the state defines as an adverse resource impact, whether you propose taking water from either groundwater or surface waters.”

Even so, there is a battle brewing in Michigan's Mecosta County, not too far from where Triton bottles its Ice Mountain water. Right up the road in Green Township, EV battery component manufacturer Gotion has proposed building a three million-square-foot facility that will produce two components of the lithium-ion battery – the cathode and the anode. Gotion intends to move forward with the $2.36 billion facility near Big Rapids on land currently zoned for agricultural use. It has received tax-free-zone approval from the county and is expected to create 2,350 jobs.

Residents of Green Township in Mecosta County have pushed back on the proposal in protests and at town meetings, expressing fears on degradation to the area’s water quality. Conservatives in the town note that Gotion is a Chinese subsidiary and fear the plant may be used as an inroad for communism in their backyard.

Green Township Supervisor Jim Chapman contends that these fears may be overblown.

In a document written to Chapman, Gotion Vice President and Mecosta County resident Chuck Thelen offered detailed answers to public questions.

As far as water usage, Thelen wrote: “The estimated (Phase One) water usage for the site … is 715,000 gallons per day. This is the start-up amount and will be reduced when the water pre-treatment facility is in operation.”

As far as wastewater production, Thelen said the facility would produce 65,000 gallons per day during the Phase One of production, increasing to 130,000 gallons per day that will be pretreated before the water heads to the municipal wastewater treatment plant.

In the memo, Thelen added that for every acre of wetlands in the county impacted as a result of the construction, Gotion will create 1.5-two acres of new wetlands along the Muskegon River Watershed.

Chapman said the amount of water Gotion will use is minimal compared to the water usage of Big Rapids, which consumes 1.1 million gallons per day.

"There has been a lot of fear-mongering in town about the potential opening of this plant, just as there was 20 years ago when Ice Mountain started pumping water in Mecosta," Chapman said. "People feared their wells would dry up and the levels of the lakes and rivers would drop, and we have seen that this is not the case. I am doing due diligence for my residents. With the rates our aquifers replenish themselves, Gotion could pull twice that proposed amount and we’d still be okay.”

While EGLE officials said that Gotion had not yet applied for a water use permit, Clean Water Action’s McBrearty said in his own talks with EGLE, none of the several EV battery and component companies planning to set up shop in the state had applied for permits.

McBrearty added that the EV battery and component manufacturing process uses water mainly as a coolant. Water does not encounter any of the minerals associated with the components.

“I have had recent conversations with EGLE officials about EV battery plants and as of (late May), none of these companies had yet to file any permits with the state, so we don’t know the specifics of the scope of water they will need and discharge,” explained McBrearty. “EV battery and component production methods do use a lot of water – but only as a coolant. This means that the water cannot and will not come into contact with the minerals like lithium or other raw materials. In fact, any contact with water would damage the manufactured product. Once water is pulled for an initial startup process, most of it will be used in a closed loop. Any wastewater will be cooled and then treated at a plant’s own treatment facility and then a municipal facility before getting released back into the ecosystem.”

Wayne State University Professor Noah Hall, who has written two books on water laws, said the public trust of our water supply is being chipped away and there are things that as a legislative body Lansing can do, but currently there is no willingness or urgency to act.

“The political system doesn't seem to be interested in (protecting our public water resources) and instead is interested in doing other things,” Hall said. “To some extent, the law has some absolute limitations on what the political system can do with the water that is in the public trust. The Great Lakes do not belong as property to the state of Michigan or to other political subdivisions, nor to the federal government. Under the public trust doctrine, there is a limitation on what a state can do with public trust waters such as the Great Lakes.”

In regards to understanding the public trust doctrine law in the state, Hall pointed to the 1892 Supreme Court case decision in Illinois Central Railroad v. Illinois, which reaffirmed that each state in its sovereign capacity holds title to all submerged lands within its borders and holds these lands in public trust.

“This case was the foundation for the modern day public trust doctrine,” said Hall. “In this case, Illinois gave a chunk of the Chicago waterfront to the Illinois Railroad.” Hall added that just as the railroads were the politically powerful, popular manufacturing economic enterprise of the day, now it is the automotive industry like Ford and General Motors and EV battery manufacturers.

“There has always been an industrial, economic, social and political goal in terms of interpreting the use of resources within the public trust.,” he said. “For a state to use public trust waters (like Illinois did for the railroad) for the economic trend of the year is not new. That is what states do with public trust waters."

Hall laments that Michigan is caught up in focusing on infrastructure and a maybe “too-little-too-late” effort on cleaning up from legacy polluters and slow legislative reform. The places the state should be focusing on are protecting the land, wetlands, forests, and shoreline that align our water supplies, protect them, and keep them clean in the first place, he noted.

“New York is a state that is doing it right,” said Hall. “It may have an aging, ancient aqueduct system that takes the water from the Catskills down to New York City. But it protects the forested land that sits on top of that aquifer that acts as a natural filter to clean and purify that water.

“What the political systems of Michigan and (Illinois) are doing with public trust water is typical,” lamented Hall. “It's frustrating because it is not good for the water. But it's within their power and as sovereigns of the states to do these things.”

Concerning the long-standing legal battle between Nestlé and the Michigan Citizens for Water Conservation, Hall said the outcome was a Solomonic case of “splitting the baby” and typical in water rights disputes.

“The case was a classic 50-50 split between (then Nestlé) and Michigan Citizens for Water Conservation,” explained Hall. “Nestlé was not allowed to take as much water as it wanted, and the (Citizens) did not get the win of an absolute prohibition on Nestlé’s bottling operations. Nestlé ended up getting a legal agreement with the plaintiffs to pump about half of what they wanted. Ultimately, it was too much for the little dead stream they were pulling from.”

Hall added that he views the courts as more capable and fairer with water decisions than political systems and leaders from either side of the aisle. He maintained it is because of the court systems that we can still get a drink of clean water and go for a swim in a body of water today.

“There are areas of the public trust that I would like to see strengthened. But at the core of the public trust is that the waters of the Great Lakes do not belong to the government. But as (Lightfoot) just demonstrated, if the water belongs to the government, if Gretchen Whitmer could do with the water as you could do with any other state asset or budget resource. I don't think we would have it tomorrow.”