Private rights, public interests and water use conflicts: evolving water law and policy in Michigan

Abstract

Water conflicts are rare across Michigan's history. As a result, water rights have received little attention by courts or the legislature. Traditionally, the common law of water rights in Michigan embraces the riparian doctrine for surface water and provides landowners with the right to use groundwater. However, two recent changes in common and statutory law significantly modify the legal relations among water users and others with a stake in water use decisions. A 2005 Michigan Court of Appeals decision created a new legal relation among riparian and groundwater rights holders. In 2008, Michigan's legislature passed laws aimed at regulating surface water and groundwater withdrawals. As an exercise of police power intended to protect public rights in water and associated environmental quality, the 2008 laws cap total water withdrawals. This program of restricting water withdrawals coexists with the state's common law which provides for reasonable use of surface water by riparian landowners and groundwater by owners of the overlying land. The result is a new set of legal relations, an uncertain legal environment, and a growing likelihood of water use conflicts. Because Michigan's body of water law is unique, neither courts nor legislature can rely on solutions used in other states.