By Paul J Sniadecki, MLSA Board Director

Believe it or not, the answer is: Not yet!

The Public Trust Doctrine, derived from English common law, provides that some resources are so central to the public good that governments can never convey them outright. The doctrine was imported to the U.S. in the 1892 case of Illinois Central Railroad v. Illinois. In Michigan, the waters of inland lakes and streams are held in trust by the state, as provided for by the Michigan Constitution.

However the Michigan Supreme Court and the Michigan Appeals Court have expressly held that the public trust doctrine does not apply to groundwater and other non-navigable waters in Michigan. The Michigan Supreme Court has stated that the “public-trust doctrine applies only to navigable waters and not to all waters of the state.”

There is a group of legislators who are seeking to change that partially based on the 81,000+ public comments protesting Nestle’s water withdrawal plans. State Representative Yousef Rabhi claims people want something done about it. He stated, “This legislation is to say, look, it’s not OK for a company to come to Michigan, pump out our groundwater. Put a price tag on it and make a profit. That’s not OK.”

So, on March 22, 2022, HB5953 (Lead Sponsor Rep. Yousef Rabhi) and HB5954 (Lead Sponsor Rep. Rachel Hood) were introduced to require Michigan to extend the Public Trust Doctrine to Michigan groundwater. In turn this would help protect Michigan lakes and streams from adverse withdrawals which can impact lake levels and stream flows. Each House Bill has over 28 co-sponsors. The bills were referred to the Committee on Natural Resources and Outdoor Recreation but no hearing dates have been scheduled.

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